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HORNBOOK  CASE  SERIES 


ILLUSTRATIVE    CASES 


ON   THE   LAW  OF 


REAL  PROPERTY 


BY  WM.  L.  BURDICK,  PH.  D.,  LL.  B. 

PROFESSOR  OF  LAW  IN  THE  UNIVERSITY  OF  KANSAS 

AUTHOR   OF 
REAL  PROPERTY,   SALES,   NEW  TRIALS  AND  APPEALS.  ETC. 


A  COMPANION  BOOK 

TO 

BURDICK  ON  REAL  PROPERTY 


ST.    PAUL 

WEST   PUBLISHING    CO. 
1914 


COPYKIQHT,     1914 
BY 

WEST  PUBLISHING  COMPANY 
(Bubd.Cas.Real  Prop.) 


THE  HORNBOOK  CASE  SERIES 


It  is  the  purpose  of  the  publishers  to  supply  a  set  of  Illustrative 
Casebooks  to  accompany  the  various  volumes  of  the  Hornbook  Series, 
to  be  used  in  connection  with  the  Hornbooks  for  instruction  in  the 
classroom.  The  object  of  these  Casebooks  is  to  illustrate  the  prin- 
ciples of  law  as  set  forth  and  discussed  in  the  volumes  of  the  Horn- 
book Series.  The  text-book  sets  forth  in  a  clear  and  concise  manner 
the  principles  of  the  subject;  the  Casebook  shows  how  these  princi- 
ples have  been  applied  by  the  courts,  and  embodied  in  the  case  law. 
With  instruction  and  study  along  these  lines,  the  student  should  se- 
cure a  fundamental  knowledge  and  grasp  of  the  subject.  The  cases 
on  a  particular  subject  are  sufficiently  numerous  and  varied  to  cover 
the  main  underlying  principles  and  essentials.  Unlike  casebooks 
prepared  for  the  "Case  Method"  of  instruction,  no  attempt  has  been 
made  to  supply  a  comprehensive  knowledge  of  the  subject  from  the 
cases  alone.  It  should  be  remembered  that  the  basis  of  the  instruc- 
tion is  the  text-book,  and  that  the  purpose  of  these  Casebooks  is  to 
illustrate  the  practical  application  of  the  principles  of  the  law. 

West  Pubwshing  Company. 
(Ill)* 


TABLE  OF  CONTENTS 


Part  I 

THE  NATURE  OF  REAL  PROPERTY  AND  TENURE 

THEREOF 

INTRODUCTION—  Page 

I.     Things   Movable  and.   Immovable 1 

WHAT  IS  REAL  PROPERTY— 

I.     Land    Includes   What 5 

FIXTURES— 

I.     Rules   for  Determining   Fixtures IS 

.II.    Time    of    Removal 29 

Part  II 
RIGHTS  IN  REAL  PROPERTY 

(A)  OWNERSHIP 

ESTATES  IN  FEE  SIMPLE— 

I.     Estates    in    Fee    Simple 31 

II.    Creation    31 

ESTATES  IN  FEE  TAIL— 

I.     Origin  of  Estates  Tail 39 

11.     Classification    of    Estates    Tail 45 

1.     Estates   in    Tail    Special 45 

III.  The  Barring  of  Estates  Tail 49 

IV.  Estates  Tail  in  the  United  States 49 

1.    Effect    of    Statutes 49 

ESTATES  FOR  LIFE—  " 

I.     Life    Estates    Defined 50 

II.     Rights  and  Liabilities  of  Life  Tenant 50 

LIFE  ESTATES  ARISING  FROM  MARRIAGE— 

I.     Estate    during    Coverture 54 

IL    Curtesy    58 

III.  Estates  Subject  to  Curtesy 62 

1.     Equitable   Estates 69 

IV.  Dbwer    72 

1.     Nature   and   Origin 72 

V.     Estates  Subject  to  Dower 75 

VI.     Quarantine    77 

VII.     Incidents    of    Dower 79 

VIII.     Dower — How    Barred 79 

1.  Divorce 79 

2.  Loss   of   Husband's   Seisin 84 

3.  Release   by    Wife 89 

4.  Widow's    Election 91 

Bubd.Cas.Real  Prop.  (v) 


Vl  TABLE  OF    CONTENTS 

HOMESTEADS—  Page 

I.     Who    Entitled   to    Homestead 95 

II.     How    Acquired 97 

III.     Loss    of    Homestead 108 

ESTATES  LESS  THAN  FREE  HOLD— 

(A)  Estates  for  Yeabs 

I.    Leases   112 

1.     Must  be  in  Writing  When 112 

II,    Rights  and  Liabilities  of  Landlord  and  Tenant 114 

1.     Under    Implied   Covenants 114 

1  .       2.     Independent  of  Covenants 133 

III.     Termination  of  Estates  for  Years 141 

1.     Destruction  of   Premises 141 

(B)  Tenancies  at  Will,  From  Year  to  Year,  and  at  Sufferance 

I.     Tenancies    at   Will — Creation 14(5 

II.     Tenancies  from  Year  to  Year 160 

1.  Creation    160 

2.  Termination    160 

III.  Tenancies  at  Sufferance 160 

IV.  Licenses — Revocation    of 166 

JOINT   OWNERSHIP  OF  ESTATES— 

I.     Joint    Tenancies 169 

1.  Definition— How    Created 169 

2.  Survivorship     172 

II.     Estates  in  Entirety 175 

[II.     Tenancies    in    Common 181 

IV.     Partition    184 

V.     Community    Property 184 

CONDITIONAL  OR  QUALIFIED  ESTATES— 

I.     Estates   upon   Condition 191 

II.     Void    Conditions 206 

III.  Termination  of  Conditional  Estates 206 

IV.  Who   may   Enforce   Forfeitures 206 

V.     Estates  upon  Limitation 206 

VI.     Estates   upon   Conditional   Limitation ; 212 

VII.    Modified    Fees 226 

1.     Base  or  Determinable  Fees 226 

EQUITABLE  ESTATES— USES  AND  TRUSTS— 

I.    The  Statute  of  Uses 239 

II.     Creation  of  Express  Trusts 244 

1.  In    general 244 

2.  Extent  of  Trustee's  Estate 248 

3.  Parties   248 

HI.     Implied    Trusts 263 

1.     Resulting    Tiiists 263 

IV.     Incidents  of  Equitable  Estates 265 

1.     :Merger    265 

V.     Charitable  or  Public  Trusts 269 

1.  Definition    269 

2.  Beneliciaiies 308 

3.  Doctrine  of  Cj'  Pres ; 315 


TABLE    OF    CONTENTS  Vll 

ESTATES  IN  EXPECTANCY—  Page 

I.     Reversions    316 

II.    Possibilities  of  Reverter 316 

III.  Future  Estates — ^At  Common  Law 316 

1.  Vested    Remainders 316 

2.  Contingent    Remainders 325 

3.  Rule  in  Shelley's  Case 332 

IV.  Future  Estates — Under  the  Statute  of  Uses 341 

1.  Springing   Uses 341 

2.  Shifting    Uses 341 

V.    Future  Estates — Under  the  Statute  of  Wills   (Executory  Devises)  341 

VI.    Alienation  of  Future  Estates 351 

THE  RULE  AGAINST  PERPETUITIES— 

L    The  Rule  Stated 356 

1.  In    general 356 

2.  Application  of  the  Rule 361 

3.  Effect  of  Violating  the  Rule 362 

II.     Estates  and  Interests  Subject  to  the  Rule 362 

III.    Exceptions  to  the  Rule 362 

(B)  RIGHTS  IN  THE  LAND  OF  OTHERS 

BASEMENTS,    PROFITS  A  PRENDRE,   AND  RENTS— 

I.     Easement    Defined 363 

1.     Distinguished  from   License 363 

II.     Creation  of  Easements 372 

1.  By    Grant 372 

2.  By  Reservation  or  Exception 372 

3.  By  Implied  Grant 37S 

4.  By    Prescription 380 

III.  Particular    Easements 389 

1.  Rights  of  Way 389 

2.  Light  and   Air 389 

IV.  Profits  a  Prendre 392 

V.    Rents    395 

1.  Rent    Charge 395 

2.  Ground   Rents 397 


Part  III 

MORTGAGES  AND   OTHER  LIENS   UPON   REAL   PROP- 
ERTY 

MORTGAGES—  (^j   General  Principles 

I.     Nature  and  Definition  of  a  Mortgage 399 

II.     Subject-Matter  of   Mortgage 403 

III.  Form  of  Mortgages 414 

1.  Defeasance  in  Separate  Instrument 414 

2.  Deed  Absolute  on  Face 416 

3.  Mortgage  or  Conditional  Sale 428 

4.  Deed  of  Trust 433 

5.  Agreement  to  Give  a  Mortgage 436 

IV.  Consideration  of  Mortgages 439 


Vlll  TABLE  OF   CONTENTS 

Page 

V.     Sale  of  the  Mortgaged  Property 445 

1.     Purchase  of  Equity  of  Eedemption  by  Mortgagee 445 

VI.     Assignment  of  Mortgages 448 

(B)   Pbiobity  and  Notice 

I.    Notice  by  Registration- 454 

1.  Actual    Notice 454 

2.  Place   of   Registration 454 

3.  To  Whom  Record  is  Notice 457 

II.     Notice  by  Possession 465 

III.     Notice  by  Lis  Pendens 471 

(C)   Discharge  and  Foreclosure 

I.     Discharge  by   Performance 471 

II.     Effect  of  Tender  of  Payment 475 

III.  Discharge   by   Redemption 482 

1.    Who  may  Redeem 482 

IV.  Foreclosure    • 486 

1.  When  the  Right  Accrues 486 

2.  Judgment   upon   Foreclosure 487 

3.  Foreclosure  under  Power  of  Sale 493 

LIENS  OTHER  THAN  MORTGAGES— 

I.     Mechanics'    Liens 494 

II.    Judgment   Liens 500 


Part  IV 

THE   ACQUISITION    AND    TRANSFER    OF   REAL   PROP- 
ERTY 

TITLE— IN  GENERAL— 

I.     Public    Grant 513 

II.  Private   Grant 527 

1.     Conveyances  at  Common  Law  and  Under  Statute  of  Uses  527 

III.  Title  by  Estoppel 530 

IV.  Title  by  Adverse  Possession 535 

1.  Requisites  for  Title  by  Adverse  Possession 535 

2.  Color  of  Title 559 

3.  Tacking   Possessions 502 

TITLE  BY  DEVISE  AND  DESCENT— 

1.    Canons  of  Descent 569 

TITLE  BY  OFFICIAL  GRANT— 

I.     Tax    Titles 576 

II.     Eminent    Domain 584 

RESTRAINTS  AND  DISABILITIES  OF  TRANSFERS— 

I.     Restraints  Imposed  in  Favor  of  Creditors 591 

II.     Restraints  Imposed  in  Creation  of  Estate 594 

III.  Persons   Under  Disabilities 599 

CREATION  OF  INTERESTS  IN  LAND  BY  POWERS— 

I.    Powers   of  Appointment 603 


TABLE   OF   CONTENTS  IX 

DEEDS  AND  THEIR  REQUISITES—  Page 

I.     Deed    Defined tJOS 

•  II.     Requisites   of  Deeds 608 

1.     Consideration     608 

III.     Description  of  Property  Conveyed 611 

IV.    The  Habendum,  Tenendum,  and  Conclusion 619 

V.     Delivery  and  Acceptance  of  Deeds 624 

1.  In    General 624 

2.  Delivery  as  an  Escrow.  634 

CONDITIONS,   COVENANTS,   AND  WARRANTIES   IN  DEEDS— 

I.     Conditions  in    General 644 

II.     Building   Restrictions 644 

III.  Covenants   in  General - 648 

1.     Real  and  Personal  Covenants 648 

IV.  Covenant  Against  Incumbrances 653 

ABSTRACTS  OF  TITLE— 

I.    Duties  and  Liabilities  of  Abstracters 660 


TABLE    OF  CASES 


Page 

Anderson  v.  Burnham 559 

Appleton,  Appeal  of 356,  362 

Ayer    v.    Philadelphia    &    Boston 

Face  Brick  Co 532 

Ayers  v.  Reidel 541 

Bails  V.  Davis ^32 

Baird  v.  Baird 439 

Barnett  v.  Barnett 35,  184 

Barrett  v.   Hinkley 399,471 

Bates  V.  Brown 569 

Blair  v.  Muse 621 

Bogert  V.  Bliss 471 

Bourn  v.  Robinson 500 

Bozarth  v.  Largent 62 

Butler  V.  Fitzgerald 84 

Canfield  v.  Ford 5,  31,  184 

Canning  v.  Owen. 18 

Carver  v.  Fennimore 181 

Church  V,  Seeley 395 

City  of  Owatonna  v.  Rosebrock. .  256 

Conduitt  V.  Ross 648 

Conners  v.  Lowell 576 

Cook   V.   Bartholomew 414 

Crenshaw  v.  Moore 72 

Cummings  v.  Cummings 50,  75 

Daly  V.   Wise 127 

Darnell  v.  Columbus  Show  Case 

Co 389 

Davis  V.  Williams 135 

Decker  v.  Stansberry 630 

Dee  v.  King 372 

De  Martin  v.  Phelan 445 

Dodd  V.  Witt 615 

Dow   V.  Whitney 459 

Doyle  V.  Union  Pac.  R.  Co 114 

Erck  V.  Church 5G2 

Everson  v.  McMuUen 482 

Ewing  V.   Nesbitt 39,  49 

Ferguson  v.  Spencer 166 

Fiske  V.  Mayhew 433,  493 

Foster  V.  Marshall 58 


Page 
Foster    Lumber    Co.    v.    Harlan 

County    Bank 436 

Frank  v.  Stratf ord-Handcock .... 

191,  644 
Fuller  V.  Missroon 31 

Gay  V.  Davey 141 

Geiszler  v.  De  Graaf 656 

George  A.  Lowe  Co.  v.  Simmons 

Warehouse  Co 653 

Glover  v.  Condell 343 

Godman   v.   Simmons 351 

Gordon  v.  Simmons 551 

Hall  V.  BoUen 599 

Hall  V.  Turner 231 

Hardage  v.  Stroope 335 

Harkness  v.  Lisle 594 

Hayden  v.  Stoughton 200 

Haynes  v.  Aldrich 133 

Heinemann  v.  De  Wolf 603 

Higgins  Oil  &  Fuel  Co.  v.  Snow 

10,  79 

Hildreth  v.  Googins 378,  389 

Hinchliffe   v.    Shea 89 

Hoban  v.  Cable 611 

Hobson  V.  Huxtable 316 

Holladay  v.  Willis 428 

Hughes  V.  Hammond 619 

Hunter  v.  Frost 146,  160 

Illinois  Central  R.  Co.  v.  Hough- 
ton      547 

Ingalls  V.  Hobbs 130 

Ingels   V.  Ingels 97 

Jackson  v.   Phillips 269,  315 

Jackson  v.   Wood 527,  60S 

Johnson  v.  Williams 461 

Kaiser  v.  Dalto 617 

Kennedy  v.  Harden 454 

Kent  V.  Dunham 312 

Kenyon,  In  re 318 

Kern  v.  Clarke 582 

Kertscher  &  Co.  v.  Green 498 


Bubd.Cas.Reai.  Pbop. 


(xi) 


Xll 


TABLE    OF    CASES 


Page 
Kirkland  v.  Cox 239,  248 

Laurence  v.  Laurence 259 

Lehigh   Val.   R.  Co.   v.   McFarlan 

380,  584 
Lowe  Co.  V.  Simmons  Warehouse 

Co 653 

Lyford  v.  Laconia 226 

McDonough  v.  O'Niel 2G3 

McKaig  V.  McKaig 77 

McKay  v.  Gesford 103 

McTigue  V.  McTigue 69 

Maun    V.    Jaclcson 206 

Matheson  v.  Matheson 639 

Matthews  v.   Carlton 112 

Miller  v.  Meers 624 

Missouri  Central  Building  &  Loan 

Ass'n   V.   Eveler 50 

Mooney  v.   Byrne 421 

]Morse  v.  Curtis 457 

Mt.  Carmel  Fruit  Co.  v.  Webster  15 
Mueller  v.  Chicago,  M.  &  St.   P. 

R.   Co 29 

Mulcahy   v.    Fenwick 448 

Neligh  V.  Michenor 405,  454 

Nellis  V.  Rickard 265 

Parker  v.   Beasley 475 

People  V.  Cogswell 308 

Perkins  v.   Coleman 530 

Peugh  V.  Davis 416 

Pierce  v.  Keator 392 

Piatt  V.  New  York  &  S.  B.  R.  Co.  411 
Proprietors    of     the     Church     in 

Brattle   Square  v.   Grant 

212,  316,  341,  362 

Rierson  v.  St.  Louis  &  S.  F.  R.  Co.  521 
Riverbank  Imp.  Co.  v.  Bancroft. .  644 
Rose  v.   Rose 54 


Page 

Rouse   V.   Caton 108 

Russell  V.   Fabyan 160 

Ryan  v.  Monaghan 341 

Seaver  v.  Fitzgerald 361 

Shaw  V.  Prpffitt 366 

Sheehy  v.  Scott 95 

Shurtz  V.  Colvin 634 

Simons  v.  McLain 169 

Sims  V.  Morrison 524 

Smith's  Estate,  In  re 244 

Snedeker  v.  Warring 24 

Stearns  v.  Fraleigh 2-lS 

Steltz  V.  sArmory  Co 494 

Strong  V.  White 1 

Sullivan  v.  Garesche 325 

Talamo  v.   Spitzmiller 157,  160 

Thornburg  v.  Wiggins 175 

Todd  V.  Nelson 591 

United  States  ex  rel.  McBride  v. 
Schurz   513 

V^an  Cleaf  v.  Burns 79 

Vandiveer  v.  Stiekney 555 

Van  Syckel  v.  O'Hearn 486 

Vaughn  v.  Schraalsle 507 

V'erner  v.  Betz 487 

Vincent  v.  Walker 60S 

Walker  v.  Bowman 660 

Ward    v.    Cochran 535 

Warner  v.  Bennett 197,  206 

Warren  v.   Warren 91 

Weart  v.  Cruser 45,  49 

Weed  V.  Lindsay 150 

White's  Estate,  In  re 397 

Wilkens  v.  Young 172 

Wood  V.  Price 465,  471 

Yeager  v.  Tuning 363,  372 


P 


HORNBOOK  CASES 


ON  THE 


LAW  OF  REAL  PROPERTY 


PART  I 


THE  NATIfRE  OF  REAL  PROPERTY  AND 
TENURE  THEREOF 


INTRODUCTION 
I.  Things  Movable  and  Immovable* 


STRONG  V.  WHITE  et  al. 

(Supreme  Court  of  Errors  of  Connecticut,  1848.    19  Conn.  238.) 

David  White  by  his  last  will  and  testament  gave  to  his  son  James 
certain  lands.  The  will  further  provided  as  follows:  "I  also  give 
to  my  said  son  all  my  moveable  property  that  I  shall  die  possessed  of," 
etc.  There  was  due  to  the  testator  at  the  time  of  his  death  a  certain 
debt  by  virtue  of  a  judgment  against  one  Stewart  obtained  in  the 
state  of  Ohio.  The  defendants  claimed  that  according  to  the  true 
intention  of  the  testator,  and  the  true  meaning  and  construction  of 
his  last  will  and  testament,  the  judgment  against  Stewart  was  part  of 
the  moveable  property  which  was  bequeathed  to  James  White.  The 
plaintiff  claimed  that  it  was  not  moveable  property,  and  that  it,  there- 
fore, belonged  to  the  residuary  legatee.^ 

Stores,  J.'  The  principal  question  in  this  case  is  whether  the  be- 
quest to  the  defendant,  James  W.  White,  of  the  testator's  "moveable 
property,"  embraced  the  judgment  against  Stewart. 

1  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  3-5. 

2  The  statement  of  facts  is  rewritten. 
8  Part  of  the  opinion  is  oniitted. 

Bued.Cas.Real  Prop. — 1 


^  INTRODUCTION 

The  law  attaches  no  technical  or  artificial  meaning  to  that  phrase; 
and  we  must  therefore  construe  it  according  to  its  ordinary  significa- 
tion, unless  there  is  something  in  the  other  parts  of  the  will,  which 
shows,  that  the  testator  intended  to  use  it  in  a  different  sense.  But 
we  find  nothing  elsewhere  in  that  instrument,  which  sheds  any  light 
on  the  subject  in  this  respect.  The  popular  meaning  must  therefore 
prevail.  The  adjective  "moveable,"  applied  to  property,  signifies  in 
its  ordinary  and  proper  sense,  that  which  is  capable  of  being  moved, 
or  put  out  of  one  place  into  another.  It  therefore  necessarily  implies, 
that  such  property  has  an  actual  locality,  and  is  susceptible  of  locomo- 
tion, or  a  change  of  place.  But  this  is  predicable  of  that  only  which  is 
corporeal  and  tangible.  A  judgment  is  obviously  not  of  this  charac- 
ter; since,  like  other  choses  in  action  it  is,  in  its  nature,  incorporeal, 
and  therefore  has  no  real  locality;  although,  as  we  shall  hereafter 
have  occasion  to  perceive,  judgments  sometimes  have,  in  contempla- 
tion of  law,  for  certain  purposes,  (not  applicable  to  the  point  now  be- 
fore us,)  a  fictitious  or  imaginary  locality  assigned  to  them  and  are 
deemed  to  exist  in  a  particular  place. 

It  is  however  insisted,  that  the  word  "moveable,"  applied  as  an 
epithet  to  property,  is  equivalent  to  the  word  "personal" ;  and  in  sup- 
port of  this  claim,  we  are  referred  to  Blackstone,  This  position  how- 
ever, so  far  from  being  supported,  is  discountenanced  by  that  writer. 
In  his  chapter  describing  the  nature  and  kinds  of  personal  property, 
(2  Comm,  383,)  he  commences,  by  stating,  that  "under  the  name  of 
things  personal,  are  included  all  sorts  of  things  moveable,  which  may 
attend  to  a  man's  person  wherever  he  goes;"  and  he  subsequently 
adds :  "But  things  personal,  by  our  law,  do  not  only  include  things 
moveable,  but  also  something  more;  the  whole  of  which  is  compre- 
hended under  the  name  of  'chattels,'  "  He  then  proceeds  to  show,  that 
this  last  term  signifies  not  only  goods  or  moveables,  but  zvhatever 
tivs  not  a  feud,  and  adds :  "It  is  in  this  latter,  more  extended,  nega- 
tive sense,  that  our  law  adopts  it ;  the  idea  of  goods  or  moveables 
only,  being  not  sufficiently  comprehensive  to  take  in  every  thing  that 
the  law  considers  as  a  chattel  interest."  From  this  passage  it  is  quite 
plain,  that  he  did  not  deem  the  phrases  "moveable  property"  and  "per- 
sonal property"  to  be  equivalent ;  but,  on  the  contrary,  that  he  consid- 
ered moveable  property  to  be  only  one  of  the  several  species  of  per- 
sonal property. 

Judge  Blackstone,  speaking  of  what  is  included  in  personal  property, 
mentions  "moveables  which  may  attend  a  man's  person,"  etc.,  it  is,  we 
think,  moreover,  plain  from  the  context  and  his  subsequent  enumera- 
tion, (on  page  387,)  of  what  he  intended  to  embrace  by  that  expression, 
that  he  used  it  in  its  literal,  primitive  sense,  as  indicating  that  par- 
ticular species  of  personal  property,  which  consists  of  tangible,  cor- 
poreal, locomotive  chattels,  and  not  choses  in  action,  to  which  it  would 
apply  only  in  an  imaginary,  artificial,  legal  sense;    a  chose  in  action, 


THINGS  MOVABLE  AND  IMMOVABLE  o 

having-,  as  it  is  sometimes  expressed,  no  corpus,  but  being  a  mere  right, 
not  in  a  thing  (in  re,)  but  to  a  thing  (ad  rem,)  and  having,  therefore, 
no  actual  locaHty;  which  right  is  indeed  often  evidenced  by  a  written 
instrument,  although  such  instrument  does  not  constitute  right  itself, 
nor  in  any  sense,  the  property  therein.  Indeed,  those  instruments,  such 
as  bonds,  bills  and  notes,  were  not,  at  common  law,  the  subjects  of 
larcen}%  because  they  were  not  deemed  to  be  of  any  intrinsic  value. 
Calye's  Case,  8  Co.  33 ;  1  Hawk.  P.  C.  c.  33,  §  55 ;  4  Bla.  Com.  234. 
Nor  do  we  find  any  case,  in  which  they  give  a  locality  to  the  debts  evi- 
denced by  them,  so  that  those  debts  pass  by  a  general  bequest  of  prop- 
erty described  as  being  situated  in  the  place  where  those  instruments 
happen  to  be.  On  the  contrary,  it  is  held,  that  a  bill  of  exchange, 
mortgage,  bond,  or  banker's  receipt,  do  not  pass,  by  a  bequest  of  all 
the  testator's  property  in  a  particular  house,  where  those  instruments 
are;  and  the  reason  given  is,  that  bills,  bonds,  etc.,  are  mere  evidence 
of  title  to  things  out  of  the  house  and  not  things  in  it.  Fleming  v. 
Brooke,  1.  Scho.  &  Lef.  318;  Lambert  v.  Lambert,  11  Ves.  607.  So 
a  bequest  of  in-door  moveables  has  been  held  not  to  include  notes  and 
other  choses  in  action.  Penniman  v.  French,  17  Pick.  (Mass.)  404. 
28  Am.  Dec.  309.  We  cannot  suppose,  that  Judge  Blackstone  intended 
to  convey  a  different  idea  from  that  which  we  have  imputed  to  him  by 
those  general  and  casual  expressions  to  which  we  have  been  referred, 
in  other  portions  of  his  commentaries,  which,  although  not  perhaps 
critically  exact,  were  sufficiently  so,  for  the  purpose  for  which  he  in- 
troduced them  in  that  elementary  work,  but  were  not  designed  to  have 
any  reference  or  application  to  such  a  point  as  the  one  now  before 
us.  See  1  Stephen's  Com.  156;  2  Id.  65,  part  2,  ch.  1;  Co.  Litt. 
118,  b.  1 ;  Atk.  183;   Com.  Dig.  tit.  Biens,  D,  2. 

The  same  remark  also  applies  to  the  quotations,  which  have  been 
made,  by  the  defendants,  from  other  elementary  writers. 

We  have  looked  in  vain  at  the  cases  on  the  subject  of  devises,  to 
find  any  judicial  construction  of  the  particular  phrase  "moveable  prop- 
erty," used  in  the  bequest  here  in  question,  either  as  connected  or 
not  with  the  other  language  of  the  will,  in  reference  to  the  question 
whether  choses  in  action  are  thereby  embraced.  In  Sparke  v.  Denne, 
however,  (Wm.  Jones'  Rep.  225,)  is  a  determination  upon  the  mean- 
ing of  a  bequest,  the  language  of  which  is  exactly  synonymous  with 
that  phrase,  and  where,  as  in  the  present  case,  the  construction  of  it 
was  not  aided  by  any  other  part  of  the  will.  The  testator,  in  that  case, 
after  devising  several  pecuniary  legacies  to  several  persons,  devised  the 
residue  "of  all  my  moveable  goods  and  chattels"  to  his  wife.  The 
question  was,  whether  debts  due  on  bond  to  the  testator,  at  the  time 
of  his  decease,  passed  by  that  bequest ;  and  it  was  held,  after  much 
argument  and  consideration,  that  they  did  not.  The  court  say,  that 
"by  tlie  devise  of  'all  my  moveable  goods  and  chattels,'  debts,  which 
are  jura,  (rights  or  choses  in  action,)  are  not  devised."     The  words 


4  INTEODUCTION 

"moveable  property,"  used  in  the  devise  before  us,  and  the  words 
"moveable  goods  and  chattels,"  used  in  the  devise  in  that  case,  are 
precisely  equivalent,  both  phrases  having  relation  to  personal  property. 
If,  therefore,  the  bequest  is  restricted,  by  the  word  "moveable,"  in  one 
case,  it  must  be  in  the  other.  It  is  well  settled,  that  a  bequest  of  "all 
my  goods  and  chattels,"  is  sufficiently  comprehensive  to  embrace  every 
species  of  personal  property,  and  consequently,  choses  in  action;  but 
it  was  there  held  to  be  restricted,  by  the  term  "moveable,"  so  as  to  ex- 
clude debts;  that  word  having  been  construed,  according  to  its  ordi- 
nary and  proper  meaning,  as  applying  only  to  tangible  personal  prop- 
erty. This  case,  therefore,  is  in  point;  and  we  find  no  other  that 
is  inconsistent  with  it.  If  the  bequest,  in  the  present  case,  had  been 
of  all  the  testator's  moveables,  his  intention  to  exclude  debts  due  to 
him,  would  have  been  more  palpable;  but  it  is  difficult  to  distinguish 
that  term,  in  meaning,  from  the  phrase  "moveable  property." 

There  are  other  cases,  besides  the  one  cited,  which  have  some,  al- 
though not  such  a  particular  bearing  on  the  question  before  us,  as 
renders  it  important  for  us  to  notice  them. 

We  think,  therefore,  that  the  judgment  against  Stewart  did  not  pass 
by  the  devise  in  question.*     *     *     * 

*  That  the  term  "movable"  does  not  embrace  choses  in  action,  see  Jackson 
V.  Vauderspreigle's  Ex'rs.  2  Dall.  (Pa.)  142.  1  L.  Ed.  323  (1792).  That  it  does 
not  include  a  debt,  see  Wood  v,  George,  36  Ky.  (6  Dana)  343,  344  (1838).  In 
the  civil  law,  movables  are  classed  as  movables  by  nature  or  movables  by 
law.  The  former  Includes  things  which  can  move  from  one  place  to  another, 
whether  they  move  themselves  as  animals,  or  whether  they  cannot  move  with- 
out the  assistance  of  extraneous  power,  such  as  inanimate  things.  French 
Civil  Code,  §  528.  The  same  provision  is  found  in  the  Civil  Code  of  Louisiana 
of  1900  (article  473).  Bonds  and  shares  or  interests  in  financial,  commercial, 
or  manufacturing  companies  are  movables  by  operation  of  law.  French  Civil 
Code,  §  529.  When  the  word  "movable"  is  used  alone,  however,  without  any 
other  addition,  it  does  not  include  money  in  cash,  precious  stones,  book  debts, 
books,  instruments  of  trade,  or  provisions.    French  Civil  Code,  §  533. 


WHAT  IS  REAL  PROPERTY 


WHAT  IS  REAL  PROPERTY 
I.  Lrand  Includes  What^ 


CANFIELD  V.  FORD. 

(Supreme  Court  of  New  York,  1858.     28  Barb.  336.) 

This  was  an  appeal  from  a  judgment  entered  upon  the  trial  of  the 
action  at  the  St.  Lawrence  circuit,  before  a  justice  of  this  court,  with- 
out a  jury,  in  June,  1857.  The  action  was  for  partition  of  real  es- 
tate. Jonathan  Fuller  was  originally  the  owner  in  fee  simple,  and 
the  common  source  of  title  to  the  lands  and  premises  in  question.  On 
the  6th  November,  1847,  Fuller  and  wife  conveyed  to  Chillion  Ford, 
the  defendant,  the  interest  in  the  lands  in  question,  in  three  parcels  de- 
scribed in  the  deed.  The  terms  of  the  deed,  with  the  covenants  therein, 
sufficiently  appear  in  the  opinion. 

Chillion  Ford,  on  the  8th  February,  1856,  by  like  deed  as  to  form 
and  covenants,  conveyed  to  John  Canfield  one  undivided  half  of  his 
interest  in  the  said  three  parcels  of  land.  On  the  19th  January,  1857, 
John  Canfield  and  wife  by  a  lil<e  deed  as  to  form  and  covenants,  con- 
veyed two  undivided  third  parts  of  his  one-half  interest  in  said  es- 
tate to  the  plaintifif  Richard  B.  Chapman.  Canfield  and  Chapman  then 
bring  an  action  for  partition  against  Ford,  the  owner  of  the  other 
half.  The  respective  interests  of  the  parties  are  correctly  set  forth 
in  the  complaint.  The  other  facts  in  the  case  are  fully  stated  in  the 
opinion  of  the  court. 

Potte;r,  J.  The  only  real  question  to  be  decided  in  this  case  is, 
whether  the  parties  to  this  action  have  such  an  estate  or  interest  in 
the  lands  in  question,  as  is  susceptible  of  partition  by  action? 

It  is  conceded  that  Jonatlian  Fuller  was  the  original  source  of  ti- 
tle, and  that  he  owned  the  entire  estate  in  fee  simple,  in  quantity  and 
quality,  and  that  the  conveyance  from  him  to  the  defendant,  and 
from  the  defendant  Ford  to  Canfield,  and  from  Canfield  to  Chapman, 
in  form  and  covenants,  are  alike.  It  is  therefore  sufficient  to  set  forth 
one  of  these  conveyances.  On  the  6th  November,  1847,  Fuller  and 
his  wife  conveyed  by  deed 'to  Chillion  Ford  the  defendant  "and  to 
his  heirs  and  assigns  forever,  all  the  mines,  ores,  minerals  and  metals, 
lying  or  being  in,  or  upon  the  lands  of  the  parties  of  the  first  part, 
situate,  lying  and  being  in  the  town  of  Depeyster,  in  the  county  of  St. 
Lawrence,  [describing  three  parcels  of  land,]  together  with  the  right 
to  raise,  work,  and  carry  away  said  mines,  ores,  minerals  and  metals. 

1  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  8. 


6  WHAT   IS    REAL   PROPERTY 

And  the  right  to  put  up  all  buildings,  and  to  use  all  lands  that  may  be 
necessalry  for  the  purposes  aforesaid.  And  the  right  of  ingress  and 
egress  thereto,  and  therefrom,  for  the  purpose  of  raising,  digging  and 
working  and  carrying  away  said  mines,  ores,  minerals  and  metals  as 
aforesaid.  And__all  the  estate,  right,  title,  interest,  claim  and  demand 
whatsoever  "oT^the  parties  of  the  first  part  of,  in  and  to  the  above 
granted  mines,  ores,  minerals  and  metals.  To  have  and  to  hold  the 
above  mentioned  and  described  mines,  ores,  minerals  and  metals,  to 
the  said  party  of  the  second  part,  his  heirs  and  assigns  forever ;''  with^ 
a  covenant  to  warrant  and  defend  the  same,  in  the  usual  form  of  a 
deed  of  warranty. 

The  revised  statutes  provide,  that  when  several  persons  shall  hold 
and  be  in  possession  of  any  lands,  tenements  or  hereditaments,  as  joint 
tenants,  or  as  tenants  in  common,  in  which  one  or  more  of  them  shall 
have  estates  of  inheritance,  or  for  life  or  lives,  or  for  years,  any  one 
or  more  of  such  persons  being  offull  age,  may  apply  to  the  court  for 
a  division  or  partition  of  such  premises,  according  to  the  rights  of  the 
respective  parties  interested  therein,  and  for  sale  of  such  premises,  if 
it  shall  appear  that  a  partition  cannot  be  made  without  great  prejudice 
to  the  owners.  Is  the  interest  in  question  such  an  interest  as  comes 
within  the  meaning  and  intent  of  this  statute?  Either  of  the  terms 
employed  in  this  statute  would  seem  to  include  the  estate  of  the  parties 
in  this  action.  "Land,"  in  its  most  general  sense,  comprehends  any 
ground,  soil  or  earth,  whatsoever,  as  meadow,  pastures,  woods,  moors, 
waters,  marshes,  furzes  and  heaths.  Co.  Litt.  4  a.  It  includes  all 
things  of  a  permanent  and  substantial  nature ;  not  only  the  face  of  the 
earth  but  everything  under  it  or  over  it.  2  Bl.  Com.  18.  "Cujus 
est  solum  ejus  est  usque  ad  coeluni,  et  ad  inferos."  "Tenements"  is 
a  word  of  greater  meaning  and  extent,  sometimes,  than  land,  and  in- 
cludes not  only  land,  but  rents,  commons,  and  several  other  rights  and 
interests  issuing  out  of  or  concerning  land.  1  Steph.  Com.  158,  9. 
'"Hereditaments"  is  a  still  more  comprehensive  term  in  law,  and  in- 
cludes whatever  may  be  inherited,  corporeal  or  incorporeal.  2  Bl. 
Com.  17.  These  terms,  therefore,  seem  to  be  comprehensive  enough 
to  include  the  estate  in  question.  I  think  there  can  be  no  doubt  that 
the  estate  in  question  is  an  estate  of  inheritance.  It  is  so  by  the  very 
terms  and  forms  of  the  grant.  The  difficulty  suggested  upon  the  ar- 
gument was,  how  to  describe  this  estate,  so  carved  out  of  the  whole 
fee.  If  it  is  an  estate  that  can  be  partitioned,  the  precise  description 
is  not  very  material,  nor  is  the  question  as  to  what  would  be  the  rights 
of  the  parties,  after  partition,  at  all  necessary  to  be  discussed  here. 
The  latter  question  does  not  arise  in  this  review. 

The  counsel  for  the  defendant  has  argued,  with  great  force,  that  the 
right  or  interest  which  was  conveyed  as  above  stated  is  not  a  fee 
simple.  In  this,  I  think,  he  is  mistaken  upon  authority.  1  Rev.  St. 
(1st  Ed.)  p.  722,  pt.  2,  c.  1,  tit.  2,  §  2.     It  is  not,  however,  necessary 


LAND   INCLUDES   WHAT  7 

that  it  should  be  a  fee  simple,  to  entitle  to  partition.  Whatever  estate 
it  may  be,  the  owner  has  such  an  interest  in  it  that  he  can  maintain 
trespass  quare  clausum  fregit  for  any  wrong  done  to  it.  Worcester  v. 
Green,  2  Pick.  (Mass.)  429.  True,  Lord  Coke,  says,  "an  inheritance  in 
fee  simple  expresses  the  largest  estate  that  a  man  can  have  in  land." 
But  Littleton  says,  "This  doth  extend  as  well  to  all  fee  simples  condi- 
tional and  qualified,  as  to  fee  simples  pure  and  absolute,  for  our  au- 
thor speaketh  here  of  the  ampleness  and  greatness  of  the  estate,  and 
not  of  the  perdurableness  of  the  same,  and  he  that  hath  a  fee  simple 
qualified  hath  as  ample  and  great  an  estate,  as  he  that  hath  a  fee 
simple  absolute.  So  as  the  diversity  appeareth  between  the  quantity 
and  the  quality  of  the  estate."  Littleton,  18  a.  And  so  also  Plowden 
says,  "that  two  fees  simple  absolute,  cannot  be  at  the  same  time  of  one 
and  the  selfsame  land."  Plowd.  349.  That  is,  the  mines,  ores  and 
minerals  being  land,  a  man  may  have  a  fee  simple  in  them  as  well  as 
he  ■  who  holds  the  soil  that  remains  unconveyed  may  have  a  fee 
simple,  for  they  are  not  the  selfsame  land.  A  man  may  have  a  fee 
simple  not  only  in  lands,  but  also  in  advowsons,  common,  estovers, 
and  other  incorporeal  hereditaments.  So  if  a  man  grants  to  another 
all  woods,  underwoods,  timber  trees,  or  others,  saving  the  soil  the 
grantee  has  a  fee  to  take  in  "alieno  solo."  Crabbe  on  Real  Property. 
§  964.  The  estate  so  partitioned,  therefore  is  an  estate  of  inheritance, 
a  fee  simple.  It  is  limited  in  quantity,  not  in  quality.  It  is  carved 
out  of  a  fee  simple  absolute,  and  the  latter  having  lost  this  quan- 
tity of  estate,  is  itself  qualified  to  that  extent,  without  losing  its  qual- 
ity of  a  fee  simple.  The  estate  in  controversy,  I  think,  may  also  be 
classified  among  estates,  as  a  "corporeal  hereditament" ;  and  comes 
within  the  definition  of  that  estate,  to  wit,  "Such  hereditaments  as  are 
of  a  material  and  tangible  nature,  such  as  may  be  perceived  by  the 
senses,  consisting  wholly  of  substantial  and  permanent  objects,  and 
may  be  comprehended  under  the  general  denominations  of  lands 
only."    Steph.  Com.  159;   Bouv.  Diet.  288. 

The  class  of  cases  referred  to  by  the  learned  counsel  for  the  de- 
fendant, which  may  not  be  partitioned,  are  cases  of  mere  Hcguse,  or 
authority  to  enter  upon  another's  land,  and  to  do  a  particular  act,  or 
series  of  acts,  without  possessing  any  estate  in  the  land.  Such  inter- 
ests, it  is  true,  cannot  be  partitioned.  This  class  of  cases  is  nearly  al- 
lied to,  and  very  often  confounded  with,  a  still  superior  interest  in 
real  property,  called  an  "easement,"  which  is  described  as  "a  liberty, 
privilege  or  advantage  in  land,  existing  distinct  from  an  ownership 
in  the  soil,  and  is  founded  on  a  grant  by  deed,  or  writing,  or  upon 
prescription,  v/hich  supposes  one,  being  a  permanent  interest  in  an- 
othet-'s  land,  without  profit,  with  a  right  at  all  times  to  enter  and  en- 
joy it."  3  Kent's  Com.  452.  Such  an  interest,  possibly,  may  not  be 
partitioned.  The  distinction  between  the  two  classes  of  cases  last 
above  mentioned,  and  that  of  a  permanent  grant  for  a  good  consid- 


8  WHAT  IS  REAL  PROPERTY 

eration,  of  an  interest  in  lands  to  be  used  for  profit,  to  a  man,  and 
to  his  heirs  and  assigns  forever,  is  palpable.  There  is  still  another 
distinction  found  in  the  old  law  books,  existing  in  regard  to  estates 
of  inheritance.  Entire  estates  of  inheritance  not  divisible,  and  estates 
that  are  divisible,  and  yet  shall  not  be  parted  or  divided  between 
coparceners.  Among  the  examples  given  of  them,  is  found  the  fol- 
lowing. If  a  man  have  reasonable  estovers,  as  housebote,  haybote, 
&c.  appendant  to  his  freehold,  they  are  so  entire,  as  they  shall  not 
be  divided  between  coparceners."  Co.  164  b.  "So  too  of  a  pischarie 
incertaine,  or  a  commons  sauns  nombre,  or  of  a  corody  incertaine." 
Id.  Another  instance  cited  by  Littleton,  of  estates  that  shall  not  be 
partitioned,  is  this :  Lord  Mountjoy,  being  seised  of  the  manor  of  C. 
did  by  deed  indented  and  enrolled,  bargain  and  sell  the  same  to  one 
Browne  in  fee,  in  which  indenture  was  contained  a  clause  on  the  part 
of  Browne,  amounting  to  a  grant  by  him  of  an  interest  and  inherit- 
ance to  Lord  Mountjoy,  his  heirs  and  assigns,  to  dig  for  ore  in  the 
lands,  (which  were  a  great  waste,)  parcel  of  the  said  manor,  and 
to  dig  for  turf,  also  for  the  making  of  alum.  In  this  case  three  points 
were  resolved  upon  by  all  the  judges,  viz, :  First.  That  this  con- 
veyance did  amount  to  a  grant  of  an  interest  and  inheritance  to  Lord 
Mountjoy,  to  dig,  etc.  Second.  That  notwithstanding  this  grant, 
Browne  and  his  heirs  and  assigns  might  dig  also,  and  like  to  a  case 
of  common  "sauns  nombre."  Thirdly.  That  the  Lord  Mountjoy  might 
assign  his  whole  interest  to  one,  two  or  more,  but  then  if  there  be 
two  or  more,  they  could  make  no  division  of  it,  but  work  together 
with  one  stock.    Co.  Lit.  164  b. 

It  will  be  seen  that  the  reason  given  by  the  judges,  why  partition 
could  not  be  made  in  the  case  above  cited,  does  not  at  all  apply  to 
the  case  in  question.  First,  the  exclusive  right  or  all  the  right  to 
mines,  ores,  etc.,  was  not  granted  in  that  case,  but  a  mere  right  or 
permission  to  dig,  etc.,  the  grantor  and  his  assigns  might  also  dig; 
and  second,  the  extent  of  the  grant  being  uncertain,  the  grantee  might 
surcharge,  to  the  injury  of  the  tenant  of  the  land.  Interests  uncertain 
in  their  extent,  could  never  be  partitioned.  In  the  case  now  Tri  ques- 
tion, the  tenant  would  be  bound  to  take  the  estate,  subject  to  the 
terms  of  the  conveyance,  granting  the  exclusive  right  to  all  the 
mines  &c.,  and  of  the  right  to  put  up  all  buildings,  and  use  all  lands 
that  may  be  necessary  for  the  purposes  expressed,  and  the  right  of 
ingress  and  egress  thereto  and  therefrom.  The  terms  of  the  grant, 
by  construction,  being  taken  most  strongly  against  the  grantor,  and  the 
whole  interest  in  the  mines,  etc.,  being  conveyed,  it  is  immaterial  to 
the  grantor  whether  one  person  with  fifty  or  more  laborers,  or  fifty 
or  more  persons  singly,  should  dig  thereon,  provided  they  use  no 
more  of  the  land  than  is  necessary  for  the  purpose  of  digging,  &c. 
all  the  mines,  ores,  &c.  This  is  a  certain  grant,  and  no  difficulty  oc- 
curs in  making  equality  of  divisi6n. 


LAND  INCLUDES   WHAT  9 

But  if  the  provisions  of  our  revised  statutes  are  not  broad  enough 
to  include  the  power  to  partition,  it  has  been  settled  that  this  court, 
as  now  constituted,  has  common  law  jurisdiction  to  partition  real 
estate;  (Story's  Eq.  Jur.  §§  646,  658;  Smith  v.  Smith,  10  Paige,  470;) 
limited  however  to  the  power  to  divide  estates  certain.  It  is  only 
necessary  in  a  court  of  equity,  to  entitle  to  partition,  so  far  as  this 
point  is  in  question,  to  show  that  equality  can  be  obtained,  in  value,  of 
lands;  especially  in  advantages  and  profits  redounding  from  each 
share  to  the  several  owners.  Allnat  on  Part.  10.  Whatever  is  capable 
of  being  divided  may  be  the  subject  of  partition  in  equity.    Id.  84. 

The  only  remaining  question  raised  in  the  case  is,  whether  the 
owner  of  the  fee  qualified  in  quantity,  out  of  which  the  estate  was 
carved,  ought  not  to  be  made  a  party  to  the  action.  The  statute  (2 
Rev.  St.  [1st  Ed.]  p.  318,  pt.  3,  c.  5,  tit.  3,  §  5,)  requires  that  the 
petition  (complaint)  shall  set  forth  the  rights  and  titles  of  all  persons 
interested  therein,  etc.  What  interest  can  Fuller,  the  grantor  of  this 
estate,  have  in  the  estate,  which  by  deed  he  has  conveyed  away?  In 
the  estate  sought  to  be  partitioned  he  has  no  interest  whatever.  Xhs 
partition  in  no  respect  affects  the  title  of  Fuller.  He  is  not  a  tenant 
in  common  with  the  parties  to  the  suit.  They  own  separate  portions 
of  the  estate,  in  severalty, 

1  think  the  judgment  must  be  affirmed. 
Judgment  affirmed.^ 

[Franklin  General  Term,  September  14,  1858,  C.  L.  AllEn,  James, 
RosEKRANS,  and  Potter,  Justices.] 

2  In  Bedlow  v.  StOlwell,  91  Hun,  384,  36  N.  Y.  Supp.  129  (1895),  it  is  said: 
"The  term  'lands,  tenements,  and  hereditaments'  is  generally  construed  to  in- 
clude all  lands  and  interests  in  lands,  corporeal  or  incorporeal,  which  would 
descend  to  an  heir  at  law."  It  is  also  held  in  Hutchinson  v.  Bramhall,  42 
N.  J.  Eq.  372,  7  Atl.  873  (1886),  that  the  expression  "lands,  tenements,  and  her- 
editaments," as  found  in  the  statute  concerning  conveyances,  providing  that 
every  deed  or  conveyance  of  or  for  any  "lands,  tenements,  or  hereditaments" 
to  any  purchaser  of  the  same  shall  be  recorded,  does  not  include  leases  for 
years,  but  applies  only  to  freehold  estates. 

Tenement. — The  word  "tenement"  in  its  legal  sense  means  an  estate  in 
land,  or  some  estate  or  interest  connected  with,  pertaining  to,  or  growing 
out  of  the  realty,  of  which  the  owner  might  be  disseised,  A  tenement  com- 
prises everything  which  may  be  holden  so  as  to  create  a  tenancy  in  the  feudal 
sense  of  the  word.  Field  v.  Higgins,  35  Me.  339,  341,  342  (1853),  citing  3 
Kent.  Comm.  401.  And  see  Sacket  v,  Wheaton,  34  Mass.  (17  Pick,)  103,  iO& 
(1835). 


10  WHAT   IS    REAL   PROPERTY 


HIGGINS  OIL  &  FUEL  CO.  v.  SNOW. 

(Circuit  Court  of  Appeals  of  the  United  States,  Fifth  Circuit.  1902.     113  Fed. 

433,  51  C.  C.  A.  267.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Eastern 
District  of  Texas. 

The  opinion  of  the  circuit  court,  filed  December  6,  1901,  is  in  part 
as  follows : 

Bryant,  District  Judge.^  This  is  an  application  for  the  appoint- 
ment of  a  receiver.  The  complainant,  Annie  E.  Snow,  a  citizen  of 
the  state  of  California,  joined  pro  forma  by  her  husband,  G.  H.  Snow, 
has  filed  a  bill  in  equity  against  the  defendants,  Higgins  Oil  & 
Fuel  Company  and  over  200  others,  corporations  and  natural  per- 
sons, citizens  of  the  state  of  Texas,  or  of  states  other  than  California, 
alleging  that  she  is  the  owner  of  a  life  estate  in  one-eighteenth,  un- 
divided, of  the  John  A.  Veatch  survey  of  land  in  Jefferson  county, 
Tex.,  less  certain  subdivisions  that  are  excepted,  embracing  the 
greater  portion  of  the  Beaumont  oil  field,  and  including  at  the  date 
of  the  filing  of  the  bill  66  flowing  wells,  all  in  the  possession  of  the 
defendants,  who  are  engaged  in  marketing  the  oil.  She  seeks  an  ac- 
counting in  regard  to  the  oil  taken  and  marketed,  claiming  an 
eighteenth  thereof,  and  to  recover  the  amount  ascertained  to  be  due. 
The  bill  also  contains  the  prayer  for  the  appointment  of  a  receiver 
to  taEe  charge  of  the  wells,  so  that  they  may  be  operated  pending  the 
litigation  without  risk  or  detriment  to  any  party,  or,  in  the  alterna- 
tive, that  a  receiver  be  appointed  to  collect  one-eighteenth  of  the 
revenues  from  said  wells,  and  to  hold  or  invest  the  same  pending  the 
litigation,  with  such  powers  and  duties  as  the  exigencies  of  the  case 
may  warrant.  Those  of  the  defendants  who  have  appeared  in  re- 
sponse to  the  rule  to  show  cause  why  a  receiver  should  not  be  ap- 
pointed have  filed  demurrers  and  answers,  and  make  substantially 
the  following  contentions ;  *  *  *  (4)  That  as  a  life  tenant  the 
complainant  is  entitled  to  no  interest  in  the  oil  produced,  her  estate 
being  limited  to  the  surface ;  and  (5)  that  in  no  event  should  a  re- 
ceiver be  appointed.  The  complainant  filed  a  general  replication. 
*     *     * 

A  difficult  question  arises  in  regard  to  the  rights  of  a  life  tenant, 
as  respects  petroleum  oil  obtained  from  the  land.  There  seems  to  be 
no  decision  in  Texas  on  the  point,  and  but  very  few  by  the  federal 
court;  in  fact,  none  directly  in  point.  The  statute  under  which  the 
complainant  acquired  her  life  estate  appears  under  the  head,  "Descent 
and  Distribution,"  and  reads  as  follows :  "When  any  person  having 
title  to  any  estate  of  inheritance,  real,  personal  or  mixed,  shall  die 
intestate  as  to  such  estate,  and  shall  leave  a  surviving  husband  or 

3  Part  of  the  opiuion  is  omitted. 


LAND   INCLUDES   WHAT  11 

wife,  the  estate  of  such  intestate  shall  descend  and  pass  as  follows: 
(1)  If  the  deceased  have  a  child  or  children  or  their  descendants,  the 
surviving-  husband  or  wife  shall  take  one-third  of  the  personal  es- 
tate, and  the  balance  of  such  personal  estate  shall  go  to  the  child  or 
children  of  the  deceased  and  their  descendants.  The  surviving  hus- 
band or  wife  shall  also  be  entitled  to  an  estate  for  life  in  one-third 
of  the  land  of  the  intestate,  with  remainder  to  the  child  or  children 
of  the  intestate  and  their  descendants."    Rev.  St.  Tex.  1895,  art.  1689. 

It  is  noticeable  that  all  property  is  classified,  and  its  mode  of  de- 
scent regulated  under  two  heads :  First,  "personal  property,"  and, 
second,  "land."  The  latter  term  is  therefore  employed  in  its  most 
comprehensive  sense,  and  is  nomen  generalissimum.  A  life  estate  is 
given  the  survivor  in  one-tliird  of  the  land  of  a  deceased  husband 
or  wife,  in  this  sense  necessarily,  because  all  property  of  inheritance 
that  is  not  land  is  classified  as  personal  property,  and  if  the  mineral 
rights  that  belonged  to  Andrew  A.  Veatch  by  virtue  of  his  fee  simple 
ownership  of  one-sixth  of  this  land  did  not  pass,  one-third  to  his 
widow  for  life,  as  land,  it  passed  as  personal  property,  one-third  to 
her  absolutely.  The  life  estate  is  given,  not  in  the  surface  of  the  land, 
but  in  the  land  as  land,  and  it  is  elementary  that  the  land  itself  in 
Jegal  contemplation  extends  from  the  sky  to  the  depths. 

Coke  says:  "The  term  'land'  includes,  not  only  the  ground  or  soil, 
but  everything  which  is  attached  to  the  earth,  whether  by  the  course 
of  nature,  as  trees,  herbage,  and  water,  or  by  the  hand  of  man,  as 
houses  and  other  buildings;  and  it  has  an  indefinite  extent  upwards 
as  well  as  downwards,  so  as  to  include  everything  terrestrial  under 
or  over  it."     Co.  Litt.  4a. 

Blackstone  says :  "Land  comprehends  all  things  of  a  permanent  and 
substantial  nature,  being  a  word  of  very  extensive  signification ;  also, 
if  a  man  grants  all  his  lands,  he  grants  all  his  mines  of  metals  and  his 
fossils,  his  woods,  his  waters,  and  his  houses,  as  well  as  his  fields  and 
meadows."    2  Bl.  Comm.  16-18. 

Washburn  says :  "Land  is  always  regarded  as  real  property,  and 
ordinarily  whatever  is  erected  or  growing  upon  it,  as  well  as  whatever 
is  contained  within  it  or  beneath  its  surface,  such  as  minerals  and  the 
like,  upon  the  principle  that  'cujus  est  solum,  ejus  est  usque  ad  caelum' 
in  one  direction,  and  'usque  ad  orcum'  in  the  other."  1  Washb.  Real 
Prop.  3. 

The  American  and  English  Encyclopedia  of  Law  (old  edition) 
defines  it  as  follows:  "Land  is  the  surface  of  the  earth,  whatever  is 
attached  to  it  by  nature  or  by  the  hand  of  man,  and  all  that  is  con- 
tained within  or  below  it."     Vol.  19,  p.  1032. 

In  Koen  v.  Bartlett,  41  W.  Va.  559,  23  S.  E.  665,  31  L  R.  A. 
130,  56  Am.  St.  Rep.  887,  the  court  discussed  this  question  of  wheth- 
er a  life  estate  in  land  is  a  mere  interest  in  the  surface,  and  said:  "It 
must  be  conceded  that  the  life  tenant  is  vested  with  the  ownership 


12  WHAT  IS   REAL  PROPERTY 

thereof  as  land,  as  being  seised  of  the  immediate  freehold  of  pos- 
session, which  possession  extends  from  top  to  bottom,  to  the  sub- 
surface as  much  as  the  surface,  in  other  words,  to  the  land  as  a  whole, 
or  the  tenant  for  life  has  a  freehold  as  well  as  a  tenant  in  fee,  and 
that  the  owners  of  the  inheritance  have  no  more  right  to  approach 
by  a  tunnel,  and  break  and  enter  his  superficial  close,  than  they  have 
to  break  and  enter  his  close  on  the  surface." 

Lenfers  v.  Henke,  7Z  111.  405,  24  Am.  Rep.  263,  is  to  the  same  effect, 
and  in  that  case  the  court  said:  "Land  comprehends  all  things  of  a 
substantial  nature,  which  includes  all  ground,  soil,  or  earth  whatever, 
and  hath  in  its  legal  signification  an  indefinite  extent  upwards  as  well 
as  downwards.  Minerals  are  a  part  of  the  land  itself,  and,  if  not 
susceptible  of  division,  the  wife  is  entitled  to  be  endowed  of  the  prof- 
its and  rents." 

According  to  all  the  cases  and  text-books  a  life  estate  in  land  in- 
variably extends  to  all  minerals  beneath  the  surface;  but,  the  right 
being  merely  to  use  and  enjoy,  and  not  to  dispose  of,  the  land,  the 
difficulty  arises  in  determining  what  is  proper  use  and  enjoyment,  and 
when  a  life  tenant  may  and  when  he  may  not  sever  and  dispose  of 
minerals  without  being  guilty  of  waste.  It  is  obvious  that  a  life 
tenant,  if  allowed  to  mine,  might  get  a  much  larger  proportion  of  the 
benefit  of  the  estate  than  he  would  ordinarily  receive.  On  the  other 
hand,  if  not  allowed  to  mine,  he  might  get  much  less.  The  courts 
have  undertaken  to  draw  the  line,  and  it  may  be  stated  as  a  general 
rule,  at  common  law,  that,  while  a  life  tenant  may  continue  to  work 
mines  that  were  open  when  the  tenancy  commenced,  and  this  even 
to  exhaustion,  and  may  construct  new  approaches,  he  cannot  open 
new  mines,  for  to  do  so  would  be  to  commit  waste.  The  rule  allow- 
ing life  tenants  to  mine,  when  the  operations  are  commenced  before 
the  tenancy  is  created,  is  based  on  the  theory  that  in  such  cases 
mining  is  a  mere  mode  of  use  and  enjoyment,  and  to  extract  minerals 
is  but  to  take  the  accruing  profits  of  the  land.  Raynolds  v.  Hanna 
(C.  C.)  55  Fed.  801 ;  Koen  v.  Bartlett,  41  W.  Va.  559,  23  S.  E.  664, 
31  L.  R.  A.  130,  56  Am.  St.  Rep.  884;  Seager  v.  McCabe,  92  Mich. 
186,  52  N.  W.  299,  16  L.  R.  A.  247;  Wentz's  Appeal,  106  Pa.  301. 
The  matter  resolves  itself,  then,  into  a  question  of  when  and  under 
what  circumstances  mining  may  be  adopted  as  a  mode  of  using  the 
land.  The  authorities  all  agree  that  there  is  no  restriction  when  the 
land  has  once  been  used  for  mining  purposes  before  the  life  tenant 
comes  in;  and  they  now  go  a  step  further,  and  hold  that  mining  will 
be  allowed  if  the  owner  of  the  preceding  estate  has  fixed  on  it  the 
character  of  mining  land  by  lease  or  the  like,  though  no  mines  were 
opened.  Priddy  v.  Griffith,  150  111.  560,  37  N.  E.  999,  41  Am.  St. 
Rep.  397 ;  Koen  v.  Bartlett,  supra ;   Seager  v.  McCabe,  supra. 

In  the  case  at  bar,  the  remainder-men,  being  also  the  owners  of 
seventeen-eighteenths  absolutely,  have  taken  possession  of  the  entire 


LAND   INCLUDES   WHAT  13 

property  to  the  exclusion  of  the  life  tenant,  and  have  converted  it 
into  an  oil  field.  The  latter  has  committed  no  waste,  and  the  point 
to  be  decided  is,  not  whether  she  might  drill  for  oil  herself,  but 
whether  she  may  elect  to  acquiesce  in  the  changing  in  the  mode  of 
use.  The  estates  were  joint  when  the  change  was  made,  and  no  par- 
tition was  demanded.  Consequently,  any  advantage  that  ensues  must 
inure  to  the  benefit  of  all  the  co-tenants  in  proportion  to  their  inter- 
ests. Lenfers  v.  Henke,  73  111.  405,  24  Am.  Rep.  263,  is  an  applica- 
ble authority,  in  principle  at  least.  The  case  involved  two  questions : 
(1)  Whether  a  widow  is  entitled  to  dower  in  mines  not  open  when 
her  right  of  dower  attached,  but  opened  by  the  reversioner  before 
assignment;  and  (2)  whether  a  certain  verbal  agreement  was  valid  as 
an  assignment  of  dower.    Both  were  decided  in  the  affirmative. 

After  announcing  that  the  first  question  presented  was  one  of  first 
impression,  the  court  proceeds  with  a  review  of  the  authorities. 
Speaking  of  the  rule  that  a  life  tenant  or  dowress  may  not  open  new 
mines,  the  court  observes :  "In  many  of  the  later  cases,  as  well  as  the 
earlier  cases,  no  reason  whatever  is  assigned  for  the  adoption  of 
the  rule;  but,  where  any  is  assigned  it  is,  the  dowress  cannot  open 
new  mines  when  discovered,  because  she  would  be  committing  waste, 
which  she  is  not  permitted  to  do.  On  principle,  why  may  she  not 
be  endowed  of  mines  opened  by  the  heir  or  owner  of  the  fee,  after 
the  dower  attaches  and  before  there  has  been  any  assignment?  By 
all  the  decisions,  it  is  not  waste  for  her  to  work  mines  opened,  al- 
though the  same  had  been  abandoned  before  the  death  of  the  hus- 
band. •  She  may  construct  new  approaches,  and  not  be  guilty  of  waste. 
The  reason  for  the  rule  adopted  that  bars  dower  in  all  mines  not 
opened  during  the  lifetime  of  the  husband  failing,  the  rule  ought  not 
to  be  extended  to  cases  not  strictly  within  its  meaning." 

And  finally:  "The  heir,  by  opening  the  mines,  has  destroyed  all 
other  profits  of  the  land.  There  is  no  mode  of  enjoying  mines,  ex- 
cepting by  working  them.  If  this  cannot  be  done,  they  are  profitless 
to  the  dowress.  As  we  have  seen,  it  is  not  waste  in  her  to  work 
mines  opened  by  her  husband,  and,  by  a  parity  of  reasoning,  we 
reach  the  conclusion  it  is  not  waste  for  her  to  work  mines  opened 
by  the  heirs  before  assignment  of  dower." 

Priddy  V.  Griffith,  150  111.  560,  Z7  N.  E.  999,  41  Am.  St.  Rep.  397, 
was  decided  by  the  same  court,  and  language  to  the  same  effect 
used.     *     *     * 

Thus  far  the  question  has  been  treated  without  distinction  between 
conventional  life  estates  and  common-law  dower  on  the  one  hand, 
and  life  estates  inherited  by  the  law  of  heirship  and  succession  on  the 
other.  In  Seager  v.  McCabe,  supra,  the  supreme  court  of  Michigan, 
construing  a  dower  statute  of  that  state  reviewed  the  decisions  at 
considerable  length,  made  the  distinction,  and  announced  the  follow- 
ing conclusion:    "The  rules  applicable  to  a  country  where  landed  es- 


14  WHAT   IS    REAL    PROPERTY 

tates  are  large  and  diversified,  where  the  laws  of  inheritance  are  ex- 
clusive, where  the  theory  of  dower  is  subsistence  merely,  and  where 
there  is  a  strong  disposition  to  free  estates  from  even  that  charge,  do 
not  obtain  in  a  commonwealth  like  ours,  where  estates  are  small,  and 
the  policy  of  our  laws  is  to  distribute  them  with  each  generation, 
where  dower  is  one  of  the  positive  institutions  of  the  state,  found- 
ed in  policy,  and  the  provision  of  the  widow  is  a  part  of  the  law 
of  distribution,  and  the  aim  of  the  statute  is,  not  subsistence  only, 
but  provision  conmiensurate  with  the  estate.  In  the  present  case  the 
grant  is  by  operation  of  the  statute,  giving  the  use  of  all, the  lands 
of  which  the  husband  was  seised.  The  grant  must  be  held  to  include 
the  use  of  these  lands,  irrespective  of  whether  mines  are  opened 
upon  them  before  or  after  the  husband's  death." 

The  statute  there  construed  was  not  as  broad  as  the  one  of  Texas, 
and  was  directed  at  the  subject  of  dower.  The  Texas  statute  makes 
no  mention  of  dower,  but  defines  that  which  under  the  civil  law  would 
have  been  a  usufruct, — an  estate  not  impeachable  for  waste.  This 
is  specially  significant,  when  it  is  remembered  that  theJTexas  system 
of  land  titles  and  laws  of  marital  rights  is  devised  largely  from  the 
civil  law.  Carroll  v.  Carroll,  20  Tex.  743.  Under  the  civil  law  the 
usufructuary  had  a  right  to  seek  for  and  open  every  kind  of  mines, 
stone  and  lime  quarries,  chalk  pits,  and  gravel  banks.  1  Dom.  Civ. 
Law,  843;   2  Dom.  Civ.  Law,  945-968;    Neel  v.  Neel,  19  Pa.  323. 

Another  noticeable  feature  of  the  statute  is  that  it  gives  the  sur- 
viving husband  the  same  estate  in  the  land  of  the  wife  upon  her  death 
that  it  gives  her  in  his  land  at  his  demise.  This  is  a  complete  answer 
to  the  argument  that  the  rule  shall  depend  upon  whether  mines  are 
open  or  not  at  the  time  of  the  husband's  death,  because  he,  by  reason 
of  his  position  as  the  head  of  the  family,  is  deemed  to  fix  for  the  use 
of  his  property  commensurate  with  the  necessities  of  his  family.  I 
think  the  complainant  is  entitled  to  one-eighteenth  of  the  oil  pro- 
duced, after  deducting  all  expenses  of  producing  and  marketing.  If 
she  is  not  entitled  to  the  net  one-eighteenth  absolutely,  then  she  is 
entitled  to  have  such  net  yield  impounded  and  put  at  interest,  the  in- 
terest to  be  paid  to  her  during  her  life,  while  the  corpus  of  the  fund  is 
preserved  for  the  remainder-men.  Blakley  v.  Marshall,  174  Pa.  425, 
34  Atl.  564;  Wilson  v.  Youst,  43  W.  Va.  826,  28  S.  E.  781,  39  L.  R. 
A.  292;  Bryan,  Petroleum,  41;  Macswinney,  Mines,  65.  In  neither 
event,  however,  should  a  court  of  equity  take  from  the  defendants  the 
control  and  management  of  the  common  property.  But  a  special  re- 
ceiver, more  in  the  nature  of  an  auditor,  will  be  appointed  for  the 
purpose  of  taking  and  keeping  accurate  accounts  of  all  oil  marketed 
by  the  defendants,  together  with  prices  obtained  and  expenses  in- 
curred, and  to  collect,  receive,  and  hold,  subject  to  the  orders  of  the 
court,  one-eighteenth  of  the  net  amount  of  all  oil  so  marketed.     Ul- 


LAND   INCLUDK-S   WHAT  15 

man  v.  Clark  (C.  C.)  75  Fed.  868,  Williamson  v.  Jones,  39  W.  Va. 
231,  19  S.  E.  436,  25  L.  R.  A.  222.     '^     *     * 

Before  PardKE,  McCormick,  and  Shelby,  Circuit  Judges. 

Per  Curiam.  As,  by  the  record,  the  appellee,  Mrs.  Snow,  is  seised 
of  an  estate  for  life  in  one  undivided  one-eighteenth  part  of  the  lands 
described  in  the  decree  appealed  from,  and  to  that  extent  is  a  ten- 
ant in  common  with  the  owners  of  the  fee,  we  all  agree  that  she  is 
interested  in  and  entitled  to  an  accounting  for  all  oil  developed  and 
produced  on  and  from  the  said  lands  to  the  prejudice  of  her  estate,  and 
to  that  end  a  receiver  was  properly  appointed  pending  the  litigation 
necessary  to  finally  determine  the  full  rights  of  the  appellee.  On  this 
appeal  no  other  questions  need  be  passed  upon. 

The  decree  of  the  circuit  court  is  affirmed,  with  costs.* 


■ '/■  ' 

MT.  CARMEL  FRUIJ  CO.  v.  WEBSTER. 

(Supreme  Court  of  California,  1903.     140  Cal.  183,  73  Pac.  826.) 

Department  1.  Appeal  from  Superior  Court,  San  Bernadino 
County. 

Action  by  the  Mt.  Carmel  Fruit  Company  against  Joseph  Webster 
and  wife.  From  a  judgment  in  favor  of  plaintiff,  defendants  appeal. 
Affirmed. 

In  this  case  a  question  was  raised  whether,  in  violation  of  the  fed- 
eral statutes  relating  to  homestead  entries  upon  the  public  land,  which 
provide  that  the  entryman  shall  file  an  affidavit  that  no  part  of  the 
land  has  been  alienated  by  him,  an  entryman's  deed  which  purported 
merely  to  convey  a  water  right  was  a  conveyance  of  "land."  Only  so 
much  of  the  case  as  pertains  to  this  question  is  here  presented.® 

Van  Dyke,  j.g  *  *  *  jj^  ^-j^ig  ^.^gg  ^]^q  conveyance  of  the  water 
rights  in  question  was  about  four  years  before  the  homestead  entry, 
and  there  is  nothing  to  show  that  either  of  the  parties  to  such  con- 
veyances at  that  time  contemplated  that  the  land  should  be  obtained 
from  the  government  by  a  homestead  entry  on  the  part  of  Webster, 
or  that  the  parties  were  not  dealing  in  a  fair  and  honorable  way. 
To  the  complaint  in  this  case,  the  answer  on  the  part  of  defendants 
is  simply  a  denial  of  the  right  of  the  plaintiff,  upon  information  and 
belief,  and  an  allegation  that  the  defendants  did  claim  some  right, 

4  For  furttier  judicial  definitions  of  land,  see  Mitchell  v.  Warner,  5  Conn. 
497,  517  (1825),  citing  1  Coke,  Inst.  4a;  Nessler  v.  Neher,  18  Neb.  649,  26  N.  W. 
471  (1886),  and  Lightfoot  v.  Grove,  52  Tenn.  (5  Heisk.)  473,  477  (1871).  See,  al- 
so, Harder  v.  Plass,  57  Hun,  540,  11  N.  Y.  Supp.  226,  227  (1890),  where  it  is  said 
that  the  word  "land"  incTades  many  things  besides  the  earth  we  tread  on,  as, 
for  example,  water,  grass,  buildings,  fences,  trees,  and  the  like,  for  all  these 
may  be  conveyed  by  the  general  designation  of  "land." 

5  This  statement  of  fact  is  rewritten. 

6  Part  of  the  opinion  is  omitted. 


16  WHAT  IS   REAL   PROPERTY 

title,  or  interest  adverse  to  the  plaintiff.  There  is  no  issue  raised 
by  the  pleadings  that  the  claim  on  the  part  of  the  plaintiff  is  founded 
upon  any  transaction  entered  into  against  public  policy. 

Further,  the  conveyances  here  were  not,  strictly  speaking,  for  tlie 
land,  or  part  of  the  same,  but  for  an  interest  in  appropriated  water, 
and  the  right  to  convey  the  same  over  and  across  the  land ;  and  by 
the  seventeenth  section  of  an  ainendatory  act  of  Congress  of  July  9, 
1870,  c.  235,  16  Stat.  218,  it  is  provided  "that  all  patents  granted,  or 
pre-emptions  or  homesteads  allowed,  shall  be  subject  to  any  vested 
and  accrued  water  rights,  or  rights  to  ditches  and  reservoirs  used  in 
connection  with  such  water  rights,  as  may  have  been  acquired  under 
or  recognized  by  the  ninth  section  of  the  act  of  which  this  is  amenda- 
tory," to  wit.  Act  July  26,  1866,  c.  262,  14  Stat.  253.  U.  S.  Comp. 
St.  1901,  p.  1437,  §  2340. 

The  principle  that  prior  appropriation  of  water  on  the  public  lands 
in  California,  where  its  artificial  use  for  agricultural,  mining,  and 
other  like  purposes  is  absolutely  essential,  is  lawful  has  all  along  been 
recognized  and  sanctioned  by  the  decisions  of  the  Supreme  Court  of 
the  United  States,  as  well  as  those  of  this  state.  Osgood  v.  Water 
&  Mining  Co.,  56  Cal.  580.  In  Broder  v.  Water  Co.,  101  U.  S.  274, 
25  L.  Ed.  790,  it  is  said  "that  rights  of  miners,  who  had  taken  pos- 
session of  mines,  and  worked  and  developed  them,  and  the  rights 
of  persons  who  had  constructed  canals  and  ditches  to  be  used  in 
mining  operations  and  for  purposes  of  agricultural  irrigation  in  the 
region  where  such  artificial  use  of  the  water  was  an  absolute  neces- 
sity, are  rights  which  the  government  had,  by  its  conduct,  recognized 
and  encouraged,  and  was  bound  to  protect,  etc. 

Our  Code,  following  the  common-law  rule,  makes  a  distinction  be- 
tween real  property  and  land — one  of  the  elements  of  real  property. 
"Real  or  immovable  property  consists  of:  (1)  Land;  (2)  that  which 
is  affixed  to  land ;  (3)  that  which  is  incidental  or  appurtenant  to  land ; 
(4)  that  which  is  immovable  by  law."  "Land  is  the  solid  material  of 
the  earth,  whatever  may  be  the  ingredients  of  which  it  is  composed, 
whether  soil,  rock,  or  other  substance."  "A  thing  is  deemed  to  be 
affixed  to  land  when  it  is  attached  to  it  by  root,  as  in  the  case  of 
trees,"  etc.  "A  thing  is  deemed  to  be  incidental  or  appurtenant  to 
land  when  it  is  by  right  used  with  the  land  for  its  benefit;  as  in  the 
case  of  a  way,  or  watercourse,  or  of  a  passage  for  light,  air,  or  heat 
from  or  cross  the  land  of  another."    Civ.  Code,  §§  658-660,  662. 

The  United  States  homestead  law,  it  will  be  seen,  prohibits  only 
an  agreement  to  sell  the  land,  or  any  part  thereof,  or  the  timber 
thereon.  The  Webster  deeds  in  question  did  not  purport  to  convey 
the  land,  or  any  part  thereof,  but  only  an  undivided  portion  of  the 
water  flowing  in  the  said  stream  or  canyon,  "being  on  or  near  sec- 
tion 28,"  and  also  the  right  of  way  to  convey  said  water,  by  ditch  or 
otherwise,  across  said  lands,  and  they  were  not  made  in  contempla- 


LAND  INCLUDES   WHAT  17 

tion  of  the  homestead  entry.     Such  a  transaction  so  far  from  being 
prohibited  by  the  acts   of   Congress   in   question,   or   against  pubHc 
poHcy,  is  favored  and  encouraged,  not  only  by  the  legislation  of  Con- 
gress, but  by  the  decisions  of  the  courts,  federal  and  state. 
Judgment  affirmed/ 

7  For  further  statutory  definitions  of  land,  see  Union  Compress  Co.  v.  State, 
64  Ark.  136,  41  S.  W.  52  (1897) ;  People  v.  Board  of  Assessors  of  Brooklyn,  39 
N.  Y.  81,  87  (1868);  Missouri,  K.  &  T.  R.  Co.  v.  Miami  County,  67  Kan.  434, 
73  Pac.  103,  105  (1903).  See,  also,  Willson's  Rev.  &  Ann.  St.  Okl.  1903,  §  887 ; 
Civ.  Code  S.  D.  1903,  §  187;  Rev.  St.  Mo.  1899,  §  9123;  Code  W.  Va.  1899,  p. 
134,  c.  13,  §  17;  Hurd's  Rev.  St.  111.  1901,  c.  120,  §  292,  subd.  12;  Bates'  Ann. 
St.  Ohio,  1904,  §  2730;  Gen.  St.  Minn.  1894,  §  255,  subd.  8;  Rev.  Laws  Mass. 
1902,  c.  8,  §  5,  subd.  8. 

Bued,Oas.Real  Pbop.— 2 


/' 


18  FIXTURES 


FIXTURES 


I.  Rules  for  Determining  Fixtures  * 


CANNING  V.  OWEN. 

ISupreme  Court  of  Rhode  Island,  1901.    22  R.  I.  624,  48  Ail.  1033,  84  Am.  St. 

Rep.   858.) 

Action  by  Letitia  A.  Canning  against  Ellen  I.  Owen  and  others. 
Judgment  was  rendered  for  plaintiff,  and  defendants  filed  a  petition 
for  a  new  trial.     Petition  granted. 

Tlllinghast,  J.  One  of  the  grounds  of  the  defendant's  petition  for 
a  new  trial  is  that  the  trial  court  allowed  testimony  to  be  introduced 
by  the  plaintiff  as  to  the  conversion  by  defendants  of  certain  elec- 
tric light  fixtures  which  had  been  attached  to  the  Lake  View  Hotel 
property  by  plaintiff  while  she  owned  the  same,  and  which  fixtures, 
at  the  time  they  were  so  attached,  were  intended  by  the  plaintiff  to  be 
and  remain  a  part  of  the  real  estate.  She  did  not  detach,  or  attempt 
to  detach,  said  fixtures  until  some  time  after  the  hotel  property  was 
sold  under  the  mortgage  thereof  given  by  her.  The  question  raised 
by  the  ruling  complained  of  is  whether  such  fixtures,  so  annexed  to 
the  freehold,  remained  personal  property,  so  as  to  enable  the  mort- 
gagor to  maintain  trover  against  the  purchaser  of  the  real  estate  at 
the  mortgagee's  sale,  for  refusal  to  give  them  up  on  demand. 

There  is  considerable  conflict  in  the  authorities  as  to  whether  such 
fixtures  pass  by  a  conveyance  of  the  land  on  which  they  are  placed 
or  with  which  they  are  connected.  Under  the  New  York  decisions,  gas 
fixtures  which  are  screwed  onto  the  gas  pipes  of  a  building  are  held 
not  to  be  so  attached  to  the  building  as  to  form  part  of  the  realty. 
The  decisions  there  seem  to  proceed  upon  the  ground  that  such  fix- 
tures as  are  capable  of  being  easily  detached  from  the  building,  with- 
out physical  injury  thereto,  are  mere  furniture,  and  therefore  not 
appurtenances  to  the  building.  See  McKeage  v.  Insurance  Co.,  81 
N.  Y.  38,  37  Am.  Rep.  471,  and  cases  cited.  In  Vaughen  v.  Halde- 
man,  33  Pa.  522,  75  Am.  Dec.  622,  it  was  held  that  gas  fixtures  at- 
tached to  the  gas  pipes  by  the  owner  of  the  premises  were  mere  per- 
sonal chattels,  and  not  "fixtures,"  in  the  proper  sense  of  the  term, 
and  hence  did  not  pass  by  a  sheriff's  deed  of  the  real  estate.  In 
partial  support  of  the  opinion,  tlie  court  cites  Lawrence  v.  Kemp,  1 
Duer  (N.  Y.)  363,  where  it  was  decided  that  gas  fixtures,  when  placed 
by  a  tenant  in  a  shop  or  store,  although  fastened  to  the  building,  are 
not  fixtures,  as  between  landlord  and  tenant ;   and  also  Wall  v.  Hinds, 

1  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  16. 


RULES    FOR   DETERMINING    FIXTURES  19 

4  Gray  (Alass.)  256,  64  Am.  Dec.  64,  where  it  was  held  that  a  lessee 
could  take  away  gas  pipes  put  in  by  him  into  a  house  leased  to  him 
for  a  hotel,  and  kept  in  place  in  the  rooms  by  metal  bands,  though 
some  of  them  passed  through  wooden  ornaments  of  the  ceiling,  which 
were  cut  away  for  their  removal.  From  the  fact  that  the  court  cited 
these  cases,  it  would  seem  that  it  took  the  view  that  substantially  the 
same  rule  obtains  regarding  fixtures  between  vendor  and  vendee  of 
real  estate  as  obtains  between  landlord  and  tenant,  which  is  clearly 
not  so.  The  other  case  cited  in  support  of  the  opinion,  viz.  Montague 
v.  Dent,  10  Rich.  (S.  C.)  135,  67  Am.  Dec.  572,  was  clearly  in  point, 
as  there  it  was  held  that  gas  fixtures,  such  as  chandeliers  and  side 
brackets,  attached  to  the  gas  pipes  by  the  owner  of  the  premises,  were 
mere  personal  property,  and  not  fixtures,  and  hence  did  not  pass  by  a 
sheriff's  sale  of  the  real  estate  to  which  they  were  attached. 

In  Minnesota  the  same  rule  obtains  as  to  gas  fixtures,  although  the 
court,  while  holding  that  they  are  not  part  of  the  realty,  admits  that 
it  is  only  by  reason  of  an  arbitrary  and  inconsistent  exception,  which 
has  been,  established  by  the  authorities,  that  it  feels  called  upon  to  so 
hold.  The  court  say  that  the  distinction  between  radiators,  which  it 
holds  to  be  part  of  the  realty,  and  gas  fixtures,  is  not  clear  in  prin- 
ciple. See  Capehart  v.  Foster,  61  Minn,  132,  63  N.  W.  257,  52  Am. 
St.  Rep.  582. 

In  speaking  of  radiators,  the  court  say:  "Such  radiators  are  an  es- 
sential part  of  such  plant,  and  are  rarely  furnished  by  tenants  or 
temporary  occupants  of  buildings  as  a  part  of  the  furniture  brought 
with  them  or  carried  away  with  them,  but  the  owner  who  furnishes  the 
rest  of  such  plant  usually  furnishes  the  radiators  also.  When,  under 
ordinary  circumstances,  the  owner  of  the  building  attaches  such  radi- 
ators to  his  steam  plant,  it  should  be  held  that  he  intended  them  to  be 
permanently  annexed  to  the  realty.  We  are  cited  to  Bank  v.  North, 
160  Pa.  303,  28  Atl.  694,  which  holds  to  the  contrary.  This  case  holds 
that  such  radiators  are  analogous  to  gas  fixtures,  and  therefore  not 
a  part  of  the  realty.  By  following  the  same  process  of  reasoning  by 
analogy,  you  would  strip  a  house  of  all  modern  improvements,  and  by 
continuing  the  process  you  would  overturn  the  greater  part  of  the 
law  of  fixtures.  A  correct  rule  should  not,  in  this  manner,  be  over- 
turned by  an  inconsistent  exception."  The  court  did  hold,  however, 
that  the  electric  annunciator,  which  was  attached  to  the  wall,  and  to 
all  the  wires  of  the  electric  call  or  electric  bell  system  of  the  hotel, 
was  a  part  of  the  realty. 

Massachusetts  decisions  are  classed,  in  the  American  and  English 
Encyclopedia  of  Law  (volume  13,  New  Ed.,  666),  with  those  which 
hold  that  gas  fixtures  are  not  a  part  of  the  realty  as  between  vendor 
and  vendee;  and  the  plaintiff's  counsel  cites  Guthrie  v.  Jones,  108 
Mass.  191,  and  Towne  v.  Fiske,  127  Mass.  125,  34  Am.  Rep.  353,  in 
support  of  this  view.  The  first-named  case  is  clearly  not  in  point,  as 


20  FIXTURES 

it  was  a  case  between  landlord  and  tenant.  And,  moreover,  it  ap- 
pears, by  the  second  opinion  given  in  the  case  (see  page  195),  that 
the  first  one  was  materially  modified.  The  second  case,  while  it  holds 
that  gas  fixtures  are  in  the  nature  of  furniture,  and  do  not  lose  their 
character  as  chattels  by  being  affixed  to  the  house  by  screws  and  cement, 
is  not  clearly  in  point  as  an  authority  in  the  case  before  us,  for  the  rea- 
son that  the  gas  fixtures  and  other  fixtures  in  question  in  that  case  were 
purchased  and  affixed  to  the  house  by  the  plaintiff,  who  was  not  the 
owner  thereof,  but  who  had  taken  possession  under  a  mere  verbal 
agreement  for  the  purchase  thereof.  No  deed  was  ever  given,  and  the 
question  which  arose  in  the  case  was  whether  the  gas  fixtures,  port- 
able furnace,  and  certain  other  things  which  the  plaintiff  had  attached 
to  the  house  during  the  time  of  his  occupancy  thereof  became  part  of 
the  realty,  and  the  court  held  that  they  did  not.  The  fact  that  the 
court,  in  support  of  its  opinion,  cited  Guthrie  v.  Jones,  supra,  would 
seem  to  indicate  that  it  treated  the  case  before  it  as  one  betwen  land- 
lord and  tenant,  rather  than  as  one  between  a  vendor  and  vendee  of 
real  estate. 

McConnell  v.  Blood,  123  Mass.  47,  25  Am.  Rep.  12,  is  more  nearly 
in  point  as  an  authority  for  the  plaintiff,  and  it  may  be  that  the  lan- 
guage there  used  by  the  court  is  broad  enough  to  include  gas  fixtures 
in  the  category  of  articles  which  do  not  become  part  of  the  realty  by 
being  affixed  thereto.  Like  the  case  before  us,  it  was  one  where  the 
rights  of  the  parties  were  to  be  determined  by  the  rules  which  apply 
between  mortgagor  and  mortgagee  upon  a  foreclosure  sale  of  the 
realty.  The  court  said :  "Many  things  which,  as  between  landlord  and 
tenant,  would  be  removable  as  chattels,  are  regarded  as  part  of  the 
realty  in  favor  of  a  mortgagee.  In  ascertaining  what  articles  have  be- 
come part  of  the  realty,  regard  must  be  had  to  the  manner  in  which, 
the  purpose  for  which,  and  the  effect  with  which,  they  are  annexed. 
*  *  *  Whatever  is  placed  in  the  building  by  the  mortgagor  to 
carry  out  the  obvious  purpose  for  which  it  was  erected,  or  to  perma- 
nently increase  its  value  for  occupation,  becomes  part  of  the  realty, 
though  not  so  fastened  that  it  cannot  be  removed  without  serious  in- 
jury, either  to  itself  or  to  the  building.  On  the  other  hand,  articles 
which  are  put  in  merely  as  furniture  are  removable,  though  more  or 
less  substantially  fastened  to  the  building.  So,  too,  machines  not  es- 
sential to  the  enjoyment  and  use  of  a  building,  occupied  as  a  manu- 
factory, nor  especially  adapted  to  be  used  in  it,  are  removable,  though 
fastened  to  the  building,  when  it  is  clear  that  the  purpose  of  fasten- 
ing them  is  to  steady  them  for  use,  and  not  to  make  them  a  permanent 
part  of,  or  adjunct  to,  the  building." 

But,  conceding  that  the  Massachusetts  decisions  are  in  harmony 
with  those  of  the  other  states  above  referred  to,  yet  as  the  contrary 
view  is  taken  by  other  courts  of  last  resort,  and  as  we  are  not  bound 
by  any  previous  decision  of  our  own  court  in  the  premises,  we  feel 


RULES  FOR   DETERMINING  FIXTURES  21 

at  liberty  to  adopt  a  different  rule,  and  one  wliich,  as  it  seems  to  us, 
is  more  logical,  and  more  in- keeping  with  the^true  idea  as  to  what 
constitutes  and  goes  to  make  up  real  estate  as  between  the  vendor  and 
vendee  thereof.  We  think  the  correct  rule  of  law  in  such  cases  is  the 
common-law  rule,  viz. :  That  whatever  is  once  annexed  to  the  free- 
hold, which  is  designed  by  the  owner  thereof  to  be  used  and  enjoyed 
in  connection  therewith,  becomes  a  part  of  the  realty,  and  passes  with 
the  conveyance  thereof.  Graeme  v.  Cullen,  23  Grat.  (Va.)  290.  And 
although  this  rule  does  not  obtain  as  between  landlord  and  tenant,  in 
relation  to  articles  attached  to  the  freehold  for  ornamental  or  do- 
mestic use,  and  also  with  regard  to  "trade  fixtures,"  so  called,  yet  it 
does  obtain  and  should  be  strictly  enforced  as  between  vendor  and 
vendee.  It  is  doubtless  true  that,  as  a  general  thing,  a  tenant  may 
remove  whatever  he  has  added  to  the  realty,  when  he  can  do  so  with- 
out injury  to  the  freehold,  "unless,"  as  said  by  Field,  J.,  in  Sands  v. 
Pfeiffer,  10  Cal.  264,  "it  has  becoine,  by  its  manner  of  addition,  an  inte- 
gral part  of  the  original  premises."  "But  not  so  a  vendor.  As  against 
him  all  fixtures  pass  to  his  vendee,  even  though  erected  for  the  pur- 
poses of  trade  and  manufacture,  or  for  ornament  or  domestic  use, 
unless  specially  reserved  in  the  conveyance."  And  the  same  strict  rule 
which  applies  between  heir  and  executor  applies  equally  between 
vendor  and  vendee  and  between  mortgagor  and  mortgagee.  2  Kent, 
Comm.  411-^13. 

We  are  aware  that  it  has  been  held  in  some  cases  that,  in  order  to 
give  chattels  the  character  of  fixtures,  they  must  be  so  affixed  to  the 
realty  that  they  cannot  be  removed  without  physical  injury  thereto; 
but  we  think  the  better  opinion,  as  well  as  the  better  reason,  is  the 
other  way,  and  in  favor  of  regarding  everything  as  a  fixture  which 
has  been  attached  to  the  realty,  with  a  view  to  enhance  the  value  there- 
of, and  for  the  purpose  of  being  permanently  used  in  connection  there- 
with. Nor  is  it  necessary  that  the  intention  of  the  owner  in  affixing 
such  articles  should  be  expressed  in  words ;  for  it  may  be,  and  ordi- 
narily should  be,  inferred  from  the  nature  of  the  articles  affixed, 
the  relation  and  situation  of  the  parties  interested,  the  policy  of  the 
law  in  respect  thereto,  the  mode  of  annexation,  and  the  purpose  or 
use  for  which  it  is  made.  Hutchins  v.  Masterson,  46  Tex.  554,  26 
Am.  Rep.  286.  Under  the  old  law,  the  principal  test  as  to  what  was 
or  was  not  a  fixture  was  said  to  be  the  nature  of  the  physical  attach- 
ment to  the  soil.  But  this  theory  has  long  since  been  exploded.  And 
as  said  by  Mr.  Washburn  in  his  work  on  Real  Property  (volume  1, 
5th  Ed.,  p.  22) :  "While  courts  still  refer  to  the  character  of  the 
annexation  as  one  element  in  determining  whether  an  article  is  a  fix- 
ture, greater  stress  is  laid  upon  the  nature  and  adaptation  of  the  arti- 
cle annexed,  the  uses  and  purposes  to  which  the  land  is  appropriated 
at  the  time  the  annexation  is  made,  and  the  relations  of  the  party 
making  it  to  the  property  in  que'stion,  as  settling  that  a  permanent  ac- 


22  FIXTURES 

cession  to  the  freehold  was  intended  to  be  made  by  the  annexation  of 
the  article."  See,  also,  Davis  v.  ^lugan,  56  AIo.  App.  311;  Ewell, 
h'lxt.  p.  43,  and  cases  in  note  2. 

In  other  words,  the  question  whether  chattels  are  to  be  regarded 
i  as  fixtures  depends  less  upon  the  manner  of  their  annexation  to  the 
freehold  than  upon  their  own  nature  and  their  adaptation  to  the  pur- 
poses for  which  they  are  used.  See  the  leading  English  case  of  Elwes 
V.  j\Iawe  (8th  Ed.)  2  Smith,  Lead.  Cas.  169,  and  note.  In  Farrar  v. 
Stackpole,  6  Greenl.  157,  19  Am.  Dec.  201,  the  court  said:  "Modern 
times  have  been  fruitful  of  inventions  and  improvements  for  the  more 
secure  and  comfortable  use  of  buildings,  as  well  as  of  many  other 
things  which  administer  to  the  enjoyment  of  life.  Venetian  blinds, 
which  admit  the  air  and  exclude  the  sum  whenever  it  is  desirable 
so  to  do,  are  of  modern  use ;  so  are  lightning  rods,  which  have  become 
common  in  this  country  and  in  Europe.  These  might  be  removed 
from  the  building  without  damage;  yet,  as  suited  and  adapted  to  the 
building  upon  which  they  are  placed  and  as  incident  thereto,  they  are 
doubtless  part  of  the  inheritance,  and  would  pass  by  a  deed  as  ap- 
pertaining to  the  realty."  In  Johnson's  Ex'r  v.  Wiseman's  Ex'r,  4 
Mete.  (Ky.)  357,  83  Am.  Dec.  475,  the  question  arose  whether  chande- 
liers and  gas  fixtures  passed  by  the  sale  of  the  house  in  question,  and 
it  was  held  that  they  did.  The  court  said :  "There  can  be  no  doubt 
that,  upon  the  sale  of  the  freehold,  fixtures  will  pass,  in  the  absence 
of  any  express  provision  to  the  contrary."  Speaking  of  the  fixtures 
in  question,  the  court  said:  "Purchasers  and  strangers,  seeing  them 
in  their  appropriate  places,  and  no  objections  made  to  the  sale,  would 
regard  them  as  a  part  of  the  freehold,  and  would  bid  for  the  prop- 
erty with  the  belief  that  the  acquisition  of  it  would  confer  upon  them 
the  right  to  these  articles  which,  from  their  nature  and  position,  seem- 
ed to  be  incident  to  and  a  part  thereof,  and  thereby  be  induced  to  bid 
more  than  they  would  otherwise  have  done."  Walmsley  v.  Milne,  7 
C.  B.  (N.  S.)  115,  is  a  strong  authority  for  the  principle  that  where  an 
article  is  once  affixed  by  the  owner  of  the  fee,  though  only  affixed  by 
bolts  and  screws,  it  is  to  be  considered  as  a  part  of  the  realty ;  at  all 
events,  where  the  object  of  setting  up  the  articles  is  to  enhance  the  value 
of  the  premises  to  which  they  are  annexed  for  the  purposes  to  which 
those  premises  are  applied.  See,  also,  Holland  v.  Hodgson,  7  L.  R.  C. 
P.  328;  Parsons  v.  Copeland,  38  Me.  537;  Strickland  v.  Parker,  54  Me. 
263;  Price  v.  Bray  ton,  19  Iowa,  311;  Teaff  v.  Hewitt,  1  Ohio  St. 
511,  59  Am.  Dec.  634;  Bank  v.  Kercheval,  65  Mo.  682,  27  Am.  Rep. 
310;  Pea  v.  Pea,  35  Ind.  387;  Fechet  v.  Drake,  2  Ariz.  239,  12  Pac. 
694;  Arnold  v.  Crowder,  81  111.  56,  25  Am.  Rep.  260. 

Adopting  the  general  rule,  then,  as  we  do,  that,  as  between  the 
vendor  and  vendee  of  real  estate,  whatever  has  been  physically  an- 
nexed or  affixed  thereto  by  the  owner,  under  the  conditions  aforesaid, 
becomes  part  and  parcel  thereof,  and  passes  with  the  conveyance  of 


RULES   FOR    DETERMINING   FIXTURES  23 

the  estate,  it  follows  that  the  electric  light  fixtures  in  question,  which 
take  the  place  of  and  serve  the  same  purpose  as  ordinary  gas  fix- 
tures, passed  to  the  defendants  by  the  conveyance  referred  to,  and 
hence  that  the  ruling  complained  of  was  erroneous.  We.  can  see  no 
reason  whatever  why  such  fixtures  are  not  as  much  a  part  of  the 
realty  as  radiators,  water  faucets,  set  tubs,  bath  tubs,  and  bowls,  port- 
able furnaces  connected  with  hot-air  pipes  for  heating  the  building, 
sform  doors  and  storm  windows,  window  blinds,  whether  inside  or  out- 
side, fire  grates,  pumps,  mantels,  and  such  other  things  as  are  annexed 
to  the  freehold  with  a  view  to  the  improvement  thereof.  All  of  these 
things,  though  mere  chattels  before  their  annexation  to  the  freehold, 
are  no  longer  such  after  their  annexation,  any  more  than  the  other 
materials  which  go  to  make  up  the  house,  but  then  become  part  and 
parcel  of  the  real  estate,  and  the  mere  fact  that  they  can  be  re- 
moved therefrom  without  physical  injury  to  the  freehold  does  not 
change  their  character  as  between  the  vendor  and  vendee  of  the  realty. 

That  the  authorities  upon  the  question  as  to  what  are  fixtures  in 
cases  of  this  sort  are  hopelessly  at  variance  is  apparent,  upon  even 
a  casual  examination  thereof.  Indeed,  it  has  frequently  been  said 
that  there  is  no  other  legal  term  in  so  general  use  as  the  word  "fix- 
tures" to  which  there  have  been  more  different  and  contradictory  sig- 
nifications attached.  Ewell,  Fixt.  1.  We  are  therefore  at  liberty,  as 
before  suggested,  to  follow  that  line  of  decisions  which  seems  to 
us  the  most  reasonable  and  logical,  and  the  conclusion  already  stated 
has  been  reached  in  that  way. 

In  relation  to  the  statement,  hereinbefore  made,  to  the  eft'ect  that 
we  are  not  bound  by  any  former  decision  of  our  own  court  in  the 
premises,  it  is  proper  to  say  that  we  have  not  overlooked  the  definitibn 
of  the  term  "fixtures"  as  laid  down  by  Greene,  C.  J.,  in  Gas  Co.  v. 
Thurber,  2  R.  I.  15,  55  Am.  Dec.  621.  But,  as  that  was  not  a  case 
where  the  gas  company  owned  the  land  in  which  the  pipes  in  question 
were  laid,  it  is  not  opposed  to  the  view  which  we  have  now  taken. 
Indeed,  it  rather  supports  our  view,  as  the  court  said,  that  "if  the 
gas  company  owned  the  land  in  which  the  pipes  were  laid,  we  should 
have  no  doubt  they  would  be  fixtures." 

Another  ground  upon  which  the  defendants  ask  for  a  new  trial  is 
that  the  damages  awarded  by  the  jury  were  excessive.  We  think  it 
is  clear  that  this  ground  is  also  well  taken.  The  amount  awarded  was 
$1,069.87,  which  is  the  exact  footing  of  the  schedule  values  of  the  long 
and  promiscuous  list  of  articles  which  the  plaintiflf  attached  to  her 
declaration.  As  to  many  of  these  articles,  there  is  no  sufficient  evi- 
dence that  they  ever  came  into  the  defendants'  possession;  as  to 
others,  it  is  very  clear  from  the  evidence  that  they  were  included  in 
the  personal  property  mortgage  to  Mrs.  Owen,  which  mortgage  had 
been  foreclosed  by  her  before  the  commencement  of  this  action ; 
and  as  to  nearly  all  of  the  articles  it  is  evident  that  the  prices  fixed 


24  FIXTURES 

thereon  by  the  plaintiff  are  greatly  in  excess  of  their  real  value.  The 
diamond  ring,  for  which  the  jury  allowed  the  plaintiff  $300,  had  been 
pledged  by  the  plaintiff,  according  to  her  own  testimony,  to  Mrs. 
Owen  as  security  for  a  loan,  which  loan  had  not  been  paid,  and  hence, 
of  course,  trover  would  not  lie  for  it ;  and  the  bath  tub  and  coal  grate 
sued  for  were  evidently  a  part  of  the  realty,  under  the  rule  afore- 
said. Moreover,  as  to  the  bath  tub,  although  there  was  not  a  word  of 
testimony  offered  concerning  its  value,  the  jury  allowed  the  sum  of 
$100  therefor.  The  evidence  also  shows  that  the  plaintiff  was  in  pos- 
session of  most  of  the  articles  sued  for  at  the  time  she  made  the 
demand  therefor  upon  the  defendants,  and  that  she  could  then  have 
removed  the  same  from  the  premises  if  she  had  seen  fit.  This  being 
so,  the  demand  and  refusal,  as  to  them,  did  not  constitute  trover. 

In  short,  under  the  evidence  submitted,  we  think  that  in  no  event 
can  the  plaintiff  recover,  except  as  to  a  very  few  and  relatively  unim- 
portant part  of  the  articles  mentioned  in  said  schedule.     Petition  for_ 
new  trial  j;ranted.* 


SNEDEKER  v.  WARRING. 
(Court  of  Appeals  of  New  York,  1854.    12  N.  Y.  170.) 

The  plaintiff  purchased  a  statue  and  sun-dial  at  a  sale  under  execu- 
tion on  a  judgment  against  James  Thom,  a  sculptor,  and  brought  this 
action  to  recover  their  value  of  the  defendant,  who  refused  to  allow 
the  plaintiff  to  remove  them  from  the  places  where  they  were  erected 
on  the  grounds  in  front  of  the  sculptor's  house  on  Staten  Island,  the 
defendant  having  purchased  the  premises  at  a  mortgage  sale  thereof. 
The  facts  are  stated  in  the  opinion.  Judgment  was  rendered  on  a  ver- 
dict in  favor  of  the  plaintiff  for  $1,675  and  affirmed  by  the  General 
Term.    The  defendant  brought  this  appeal. 

Parker,  J.  The  facts  in  this  case  are  undisputed,  and  it  is  a  ques- 
tion of  law  whether  the  statue  and  sun-dial  were  real  or  personal 
property.    The  plaintiffs  claim  they  are  personal  property,  having  pur- 

2  In  the  earlier  cases,  the  sole  test  of  a  fixture  was  whether  or  not  it  was 
physically  aimexed  to  the  realty.  See  Walker  v.  Sherman,  20  Wend.  (N.  Y.) 
630  (1S30);  Teaff  v.  Hewitt,  1  Ohio  St.  511,  59  Am.  Dec.  634  (1853).  It  is  still 
a  positive  provision  of  the  Civil  Law  that  an  owner  of  a  movable  article  is 
supposed  to  have  placed  it  upon  his  estate  to  remain  there  perpetually  when 
it  is  fastened  with  plaster,  or  mortar,  or  cement.  French  Civil  Code,  §  525. 
In  this  country,  gas  fixtures  and  chandeliers  are  usually  regarded  as  furniture, 
or  "domestic  fixtures,"  and  not  as  fixtures  proper.  In  support  of  this  view, 
see  L'Hote  v.  Fulham,  51  La.  Ann.  780,  25  South.  655  (1899);  Capehart  v,  Fos- 
ter, 61  Minn.  132,  63  N.  W.  257,  52  Am.  St.  Rep.  582  (1895);  Rogers  v.  Crow, 
40  Mo.  91,  93  Am.  Dec.  299  (1867);  McKeage  v.  Hanover  F.  Ins.  Co.,  81  N.  Y. 
38,  37  Am.  Rep.  471  (1880).  See,  also.  New  York  L.  Ins.  Co.  v.  Allison,  107 
Fed.  179,  46  C.  C.  A.  229  (1901)  holding  that,  as  between  a  mortgagee  of  realty 
and  a  vendee  of  the  fixtures,  the  chandeliers  in  a  theater  are  not  fixtures. 
In  Berliner  v.  Piqua  Club  Ass'n,  32  Misc.  Rep.  470,  66  N.  Y.  Supp.  791  (1900), 
it  is  held,  however,  that  chandeliers  in  a  clubhouse  are  included  in  a  mort- 
gage of  the  realty. 


RULES   FOR  DETERMINING   FIXTURES  25 

chased  them  as  such  under  an  execution  against  Thorn.  The  defend- 
ant claims  they  are  real  property,  having  bought  the  farm  on  which 
they  were  erected  at  a  foreclosure  sale  under  a  mortgage  executed  by 
Thom  before  the  erection  of  the  statue  and  sun-dial,  and  also  as  mort- 
gagee in  possession  of  another  mortgage,  executed  by  Thom  after 
their  erection.  The  claim  of  the  defendant  under  the  mortgage  sale 
is  not  impaired  by  the  fact  that  the  property  in  controversy  was  put 
on  the  place  after  the  execution  of  the  mortgage.  Corliss  v.  McLagin, 
29  Me.  115;  Winslow  v.  Merchants'  Ins.  Co.,  4  Mete.  306,  38  Am. 
Dec.  368.  Permanent  erections  and  other  improvements,  made  by  the 
mortgagor  on  the  land  mortgaged,  become  a  part  of  the  realty  and  are 
covered  by  the  mortgage. 

In  deciding  whether  the  property  in  controversy  was  real  or  person- 
al, it  is  not  to  be  considered  as  if  it  were  a  question  arising  between 
landlord  and  tenant,  but  it  is  governed  by  the  rules  applicable  between 
grantor  and  grantee.  The  doubt  thrown  upon  this  point  by  the  case 
-of  Taylor  v.  Townsend,  8  Mass.  411,  5  Am.  Dec.  107,  is  entirely  re- 
moved by  the  later  authorities,  which  hold  that,  as  to  fixtures,  the  same 
rule  prevails  between  mortgagor  and  mortgagee  as  between  grantor 
and  grantee.  Union  Bank  v.  Emerson,  15  Mass.  159;  Winslow  v. 
Merchants'  Ins.  Co.,  4  Mete.  306,  38  Am.  Dec.  368;  Robinson  v.  Pres- 
wick,  3  Edw.  Ch.  246 ;  1  Hill,  on  Mort.  294,  note  f ,  and  cases  there  cit- 
ed.   And  see  Bishop  v.  Bishop,  11  N.  Y.  123,  126,  62  Am.  Dec.  68. 

Governed,  then,  by  the  rule  prevailing  between  grantor  and  grantee, 
if  the  statue  and  dial  were  fixtures,  actual  or  constructive,  they  passed 
to  the  defendant  as  part  of  the  realty. 

No  case  has  been  found  in  either  the  English  or  American  courts 
deciding  in  what  cases  statuary  placed  in  a  house  or  in  grounds  shall 
be  deemed  real  and  in  what  cases  personal  property.  This  question 
must,  therefore,  be  determined  upon  principle.  All  will  agree  that 
statuary  exposed  for  sale  in  a  workshop,  or  wherever  it  may  be  be- 
fore it  shall  be  permanently  placed,  is  personal  property ; .  nor  will  it  be 
controverted  that  where  statuary  is  placed  upon  a  building,  or  so  con- 
nected with  it  as  to  be  considered  part  of  it,  it  will  be  deemed  real 
property  and  pass  with  a  deed  of  the  land.  But  the  doubt  in  this  case 
arises  from  the  peculiar  position  and  character  of  this  statue,  it  being 
placed  in  a  court-yard  before  the  house,  on  a  base  erected  on  an  arti- 
ficial mound  raised  for  the  purpose  of  supporting  it.  The  statue  was 
not  fastened  to  the  base  by  either  clamps  or  cement,  but  it  rested  as  firm- 
ly on  it  by  its  own  weight,  which  was  three  or  four  tons,  as  if  other- 
wise affixed  to  it.  The  base  was  of  masonry,  the  seams  being  pointed 
with  cement,  though  the  stones  were  not  laid  in  either  cement  or  mor- 
tar ;  and  the  mound  was  an  artificial  and  permanent  erection,  raised 
some  two  or  three  feet  above  the  surrounding  land,  with  a  substantial 
stone  foundation. 

If  the  statue  had  been  actually  affixed  to  the  base  by  cement  or 
clamps,  or  in  any  other  manner,  it  would  be  conceded  to  be  a  fixture, 


26  FIXTURES 

and  to  belong  to  the  realty.  But  as  it  was,  it  could  have  been  removed 
without  fracture  to  the  base  on  which  it  rested.  But  is  that  circum- 
stance controlling?  A  building  of  wood,  weighing  even  less  than 
this  statue,  but  resting  on  a  substantial  foundation  of  masonry,  would 
have  belonged  to  the  realty.  A  thing  may  be  as  firmly  affixed  to  the 
land  by  gravitation  as  by  clamps  or  cement.  Its  character  may  depend 
much  upon  the  object  of  its  erection.  Its  destination,  the  intention  of 
the  person  making  the  erection,  often  exercise  a  controlling  influence, 
and  its  connection  with  the  land  is  looked  at  principally  for  the  pur- 
pose of  ascertaining  whether  that  intent  was  that  the  thing  in  question 
should  retain  its  original  chattel  character,  or  whether  it  was  designed 
to  make  it  a  permanent  accession  to  the  lands. 

By  the  civil  law,  columns,  figures  and  statues,  used  to  spout  water  at 
fountains,  were  regarded  as  immovable  or  real  (1  Pandects,  lib.  19,  tit. 
1,  §  17,  by  Pothier,  107),  though  it  was  inferred  that  statues  resting 
on  a  base  of  masonry  were  not  immovable,  because  they  were  there, 
not  as  part  of  the  construction,  but  as  ornaments  (Corp.  Juris  Civ.,  by 
Kreigel,  lib.  19,  tit.  1,  §  17;  Poth.  Pand.  109;  Burr.  Law  Diet. 
"Affixus").  But  Labeo  held  the  rule  to  be  "ea  quae  perpetui  usus 
causa  in  sedificiis  sunt,  sedificii  esse;  quae  vero  ad  praesens,  non  esse 
asdificii" ;  thus  making  the  kind  of  property  depend  upon  the  question 
whether  it  was  designed  by  the  proprietor  to  be  permanent  or  tempora- 
ry, or,  as  it  was  generally  called  by  civilians,  "its  destination."  Corp. 
Jur.  Civ.,  by  Kreigel,  lib.  19.  tit.  1,  §  17. 

And  Pothier  says  that  when,  in  the  construction  of  a  large  vestibule 
or  hall,  niches  are  made  the  statues  attached  ("attachees")  to  those 
niches  make  part  of  the  house  for  they  are  placed  there  ad  integran- 
dam  domum.  They  serve  to  complete  that  part  of  the  house  Indeed, 
the  niches  being  made  only  to  receive  the  statues,  there  will  fail  to 
be  any  thing  in  the  vestibule  without  the  statues ;  and  he  says,  it  is  of 
such  statues  that  we  must  understand  what  Papinianus  says:  "Sigilla 
et  statuae  affi^ie,  instrumento  domus  non  continentur,  sed  domus  portio 
sunt."    Pothier  de  Communaute,  §  56. 

By  the  French  law,  statues  placed  in  a  niche  made  expressly  to  re- 
ceive them,  though  they  could  be  removed  without  fracture  or  deterio- 
ration, are  immovable,  or  part  of  the  realty.  Code  Nap.  §  525.  But 
statues  standing  on  pedestals  in  houses,  court-yards  and  gardens  retain 
their  character  of  "movable"  or  personal.  3  Touillier,  Droit  Civil  de 
France,  12.  This  has  reference  to  statues  only  which  do  not  stand  on 
a  substantial  and  permanent  base  or  separate  pedestal  made  expressly 
for  them.  For  when  a  statue  is  placed  on  a  pedestal  or  base  of  ma- 
sonry constructed  expressly  for  it,  it  is  governed  by  the  same  rule  as 
when  placed  in  a  niche  made  expressly  to  receive  it,  and  is  immovable. 
2  Repertoire  Generale,  Journal  du  Palais,  by  Ledru  Rollin,  518,  §  139. 
The  statue  in  such  case  is  regarded  as  making  part  of  the  same  thing 
with  the  permanent  base  upon  which  it  rests.  The  reasons  for  the 
French  law  upon  this  subject  are  stated  by  the  same  author  in  the 


RULES   FOR    DETERMINING   FIXTURES'  27 

■same  work,  page  517,  section  129,  where  the  rule  is  laid  down  with 
regard  to  such  ornaments  as  mirrors,  pictures  and  statues,  that  the  law 
will  presume  the  proprietor  intended  them  as  immovable,  when  they 
cannot  be  taken  away  without  fracture  or  deterioration,  or  leaving  a 
gap  or  vacancy.  A  statue  is  regarded  as  integral  with  the  permanent 
base  on  which  it  rests,  and  which  was  erected  expressly  for  it,  when 
the  removal  of  the  statue  will  offend  the  eye  by  presenting  before  it  a 
distasteful  gap  ("vide  choquant")  a  foundation  and  base  no  longer  ap- 
propriate or  useful.  .  Id.  §  139.  Things  immovable  by  destination  are 
said  to  be  those  objects  movable  in  their  nature,  which,  without  being 
actually  held  to  the  ground,  are  destined  to  remain  there  perpetually 
attached  for  use,  improvement  or  ornament.  2  Ledru  Rollin,  Reper- 
toire Generale,  514,  §  30. 

I  think  the  French  law,  as  applicable  to  statuary,  is  in  accordance 
with  reason  and  justice.  It  effectuates  the  intention  of  the  proprietor. 
No  evidence  could  be  received  more  satisfactory  of  the  intent  of  the 
proprietor  to  make  a  statue  a  part  of  his  realty,  than  the  fact  of  his 
having  prepared  a  niche  or  erected  a  permanent  base  of  masonry  ex- 
pressly to  receive  it ;  and  t<^  remove  a  statue  from  its  place,  under  such 
circumstances,  would  produce  as  great  an  injury  and  do  as  much  vio- 
lence to  the  freehold,  by  leaving  an  unseemly  and  uncovered  base,  as  it 
would  have  done  if  torn  rudely  from  a  fastening,  by  which  it  had  been 
<:onnected  with  the  land.  The  mound  and  base  in  this  case,  though  de- 
signed in  connection  with  the  statue  as  an  ornament  to  the  grounds, 
would,  when  deprived  of  the  statue,  become  a  most  objectionable  de- 
formity. 

There  are  circumstances  in  this  case,  not  necessary  under  the  French 
law,  to  indicate  the  intention  to  make  the  statue  a  permanent  erection, 
but  greatly  strengthening  the  presumption  of  such  intent.  The  base 
was  made  of  red  sandstone,  the  same  material  as  the  statue,  giving 
to  both  the  statue  and  base  the  appearance  of  being  but  a  single  block, 
and  both  were  also  of  the  same  material  as  the  house.  The  statue  was 
thus  peculiarly  fitted  as  an  ornament  for  the  grounds  in  front  of  that 
particular  house.  It  was  also  of  colossal  size  and  was  not  adapted  to 
any  other  destination  than  a  permanent  ornament  to  the  realty.  The 
design  and  location  of  the  statue  were  in  every  respect  appropriate,  in 
good  taste,  and  in  harmony  with  the  surrounding  objects  and  circum- 
stances. 

I  lay  entirely  out  of  view  in  this  case  the  fact  that  Thom  testified 
that  he  intended  to  sell  the  statue  when  an  opportunity  should  offer. 
His  secret  intention  in  that  respect  can  have  no  legitimate  bearing  on  the 
question.  He  clearly  intended  to  make  use  of  the  statue  to  ornament 
his  grounds,  when  he  erected  for  it  a  permanent  mound  and  base ;  and 
a  purchaser  had  a  right  so  to  infer  and  to  be  governed  by  the  manifest 
and  unmistakable  evidences  of  intention.  It  was  decided  by  the  Court 
of  Cassation  in  France,  in  Hornelle  v.  Enregistr.  (2  Ledru  Rollin,  Jour- 
nal du  Palais,  Repertoire,  etc.,  214),  that  the  destination  which  gives 


28  FIXTURES 

to  movable  objects  an  immovable  character  results  from  facts  and  cir- 
cumstances determined  by  the  law  itself,  and  could  neither  be  estab- 
lished or  taken  away  by  the  simple  declarations  of  the  proprietor, 
whether  oral  or  written.  There  is  as  much  reason  in  this  rule  as  in 
that  of  the  common  law  which  deems  every  person  to  have  intended 
the  natural  consequences  of  his  own  acts. 

There  is  no  good  reason  for  calling  the  statue  personal  property 
because  it  was  erected  for  ornament  only,  if  it  was  clearly  designed  to 
be  permanent.  If  Thorn  had  erected  a  bower  or  summer-house  of 
wicker-work,  and  had  placed  it  on  a  permanent  foundation  in  an  ap- 
propriate place  in  front  of  his  house,  no  one  would  doubt  it  belonged 
to  the  realty ;  and  I  think  this  statue  as  clearly  belongs  to  the  realty  as 
a  statue  would,  placed  on  the  house,  or  as  one  of  two  statues  placed  on 
the  gate-posts  at  the  entrance  to  the  grounds. 

I  An  ornamental  monument  in  a  cemetery  is  none  the  less  real  proper- 
ty because  it  is  attached  by  its  own  weight  alone  to  the  foundation  de- 
signed to  give  it  perpetual  support. 

It  is  said  the  statues  and  sphinxes  of  colossal  size,  which  adorn  the 
avenue  leading  to  the  temple  of  Karnak  at  Thebes,  are  secured  on  their 
solid  foundations  only  by  their  own  weight.  Yet  that  has  been  found 
sufficient  to  preserve  many  of  them  undisturbed  for  four  thousand 
years  (Taylor's  Africa,  113  et  seq.) ;  and  if  a  traveler  should  purchase 
from  Mehemet  Ali  the  land  on  ^which  these  interesting  ruins  rest,  it 
would  seem  quite  absurd  to  hold  that  the  deed  did  not  cover  the  statues 
still  standing,  and  to  claim  that  they  were  the  still'  unadministered  per- 
sonal assets  of  the  Ptolemies,  after  an  annexation  of  such  long  du- 
ration. No  legal  distinction  can  be  made  between  the  sphinxes  of 
Thebes  and  the  statue  of  Thom.  Both  were  erected  for  ornament,  and 
the  latter  was  as  colossal  in  size  and  as  firmly  annexed  to  the  land  as 
the  former,  and  by  the  same  means. 

I  apprehend  the  question,  whether  the  pyramids  of  Egypt  or  Cleo- 
patra's needle  are  real  or  personal  property,  does  not  depend  on  the 
result  of  an  inquiry  by  the  antiquarian  whether  they  were  originally 
made  to  adhere  to  their  foundations  with  wafers,  or  sealing  wax,  or  a 
handful  of  cement.  It  seems  to  me  puerile  to  make  the  title  to  depend 
upon  the  use  of  such  or  any  other  adhesive  substances,  when  the  weight 
of  the  erection  is  a  much  stronger  guaranty  of  permanence. 

The  sun-dial  stands  on  a  somewhat  different  footing.  It  was  made 
for  use  as  well  as  for  ornament,  and  could  not  be  useful  except  when 
firmly  placed  in  the  open  air  and  in  the  light  of  the  sun.  Though  it 
does  not  appear  that  the  stone  on  which  it  was  placed  was  made  ex- 
pressly for  it,  it  was  appropriately  located  on  a  solid  and  durable  foun- 
dation. There  is  good  reason  to  believe  it  was  designed  to  be  a 
permanent  fixture,  because  the  material  of  which  it  was  made  was  the 
same  as  that  of  the  house  and  the  statue,  and  because  it  was  in  every 
respect  adapted  to  the  place. 


TIME   OF   REMOVAL  29 

My  conclusion  is,  that  the  facts  in  the  case  called  on  the  judge  of 
the  Circuit  to  decide,  as  a  matter  of  law,  that  the  property  was  real, 
and  to  nonsuit  the  plaintiff;  and  if  I  am  right  in  this  conclusion,  the 
judgment  of  the  Supreme  Court  should  be  reversed. 

Johnson  and  D^nio,  JJ,,  dissent.^ 

Judgment  reversed. 


II.  Time  of  Removal* 


MUELLER  V.  CHICAGO,  M.  &  ST.  P.  RY.  CO. 

(Supreme  Court  of  Wisconsin,  1901.     Ill  Wis.  300,  87  N.  W.  239.) 

Appeal  from  circuit  court,  Pepin  county;  E..W.  Helms,  Judge. 

Action  of  conversion  by  Anton  Mueller  against  the  Chicago,  Mil- 
waukee &  St.  Paul  Railway  Company.  From  a  judgment  in  favor  of 
defendant,  plaintiff  appeals.    Affirmed. 

Cassoday,  C.  J.  This  is  an  action  to  recover  damages  for  the 
wrongful  conversion  of  a  lean-to  upon  the  section  house  of  the  de- 
fendant at  Savoy,  near  Maxville  station.  Issue  being  joined,  and  trial 
had,  the  court,  at  the  close  of  the  testimony  on  the  part  of  the  plaintiff, 
granted  a  nonsuit,  and  from  the  judgment  entered  thereon  the  plaintiff 
brings  this  appeal. 

It  appears  from  the  record,  and  is  undisputed,  in  effect,  that  in  the 
spring  of  1897  the  defendant  employed  the  plaintiff  to  work  for  it  as 
section  foreman  on  that  section,  with  the  understanding  and  agreement 
that  the  plaintiff  and  his  family  should  occupy  the  section  house  of  the 
defendant  at  that  place ;  that  such  section  house  was  16  feet  wide  by 
26  feet  long,  and  1%  stories,  or  12  feet,  high,  and  situated  upon  blocks, 
and  upon  the  land  of  the  defendant,  and  about  150  feet  from  the  main 
track,  and  had  an  addition  to  it  at  the  time,  which  the  plaintiff  removed 
after  he  moved  into  the  section  house ;  that  while  the  plaintiff  was  so 
occupying  such  section  house  with  his  family,  he  did,  with  the  knowl- 
edge and  consent  of  the  defendant,  purchase  lumber,  and  constructed  a 
small  lean-to,  for  a  kitchen,  against  said  section  house  at  the  cost  and 
of  the  value  of  $67,  and  also  with  such  knowledge  and  consent  put  in  a 
pump  of  the  value  of  $7 ;  that  such  lean-to  had  two  common,  middle- 
sized  windows  of  four  lights  each,  and  one  door;  that  the  section 
house  had  boards  up  and  down,  and  the  plaintiff  nailed  a  two  by  four 
piece  of  lumber  on  the  section  house,  and  fastened  the  lean-to  to  that ; 
that  the  floor  was  a  double  floor,  and  matched,  and  overhead  there  was 
a  single  pine  flooring,  matched;  that  the  inside  was  ceiled  up  with 
flooring ;  that,  after  the  section  house  and  lean-to  had  remained  in  that 

8  The  dissenting  opinion  is  omitted. 

*  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  17. 


30  FIXTURES 

condition  for  over  two  years,  changes  were  made  on  the  outside,  and, 
while  the  plaintiff  and  his  family  were  still  occupying  the  same  as  ten- 
ant of  the  defendant,  the  defendant's  bridge  carpenters  papered  and 
sided  the  same  as  directed  by  the  plaintiff,  but  so  that  the  siding  did 
not  go  further  than  the  section  house,  leaving  a  seam  between  it  and 
the  lean-to ;  "that,  after  the  plaintiff  had  placed  the  repairs  and  im- 
provements on  said  section  house  in  the  manner  aforesaid,  and  while 
he  was  living  in  said  house,  the  defendant  covered  all  the  same  with 
outside  sheeting  or  lap-siding  in  the  usual  way,  and  thereby  converted 
all  the  same  to  its  own  use  and  benefit,  and  prevented  the  plaintiff  from 
removing  all  the  same,  as  he  intended  to  do  in  case  the  defendant  did 
not  buy  the  same  from  him;  and  that,  soon  after  the  defendant  had 
covered  the  lumber  that  the  plaintiff  had  placed  on  its  said  building  and 
put  in  said  kitchen,  it  discharged  him  from  its  said  employment."  The 
plaintiff  was  so  employed  by  the  month  for  no  stated  time,  and  could 
(juit  whenever  he  pleased,  and  could  be  discharged  at  the  pleasure  of 
the  defendant.  He  was  discharged  in  the  spring  of  1900.  After  he 
and  his  family  had  moved  away,  the  plaintiff  asked  the  defendant's 
road  master  if  he  could  not  pay  the  defendant  for  the  siding  it  had  so 
placed  upon  the  lean-to,  and  for  the  two  days'  work  in  putting  it  on, 
and  then  be  allowed  to  take  the  lean-to  away,  and  remove  it  to  Durand  ; 
but  the  road  master  replied  that  that  would  destroy  or  injure  the  build- 
ing. The  plaintiff  paid  no  rent  for  so  occupying  the  section  house  with 
his  family,  and  never  agreed  to. 

Upon  the  facts  stated,  it  is  obvious  that  the  lean-to  became  a  fixture 
on  the  premises  of  the  defendant,  within  the  principles  of  law  repeat- 
edly and  recently  stated  by  this  court.  Gunderson  v.  Swarthout,  104 
Wis.  186,  190-192,  80  N.  W.  465,  76  Am.  St.  Rep.  860,  and  numerous 
cases  there  cited;  Fuller- Warren  Co.  v.  Harter,  110  Wis.  80,  85  N.  W. 
698,  700-702,  53  L.  R.  A.  603,  84  Am.  St.  Rep.  867,  and  cases  there 
cited.  It  was  physically  attached  to  the  section  house,  and  hence  to 
the  realty.  It  was  adapted  to  the  use  and  purpose  to  which  the  realty 
was  devoted.  It  was  the  intention  of  the  plaintiff,  in  constructing 
the  same,  that  it  should  be  so  attached,  and  that  it  should  be  used  in 
connection  with  the  section  house.  There  is  no  claim  nor  pretense  that 
the  defendant  ever  agreed  that  the  plaintiff  might  remove  the  lean-to 
from  the  premises.  Certainly,  a  tenant  of  a  dwelling  house,  in  posses- 
sion under  a  lease  which  does  not  provide  that  he  may  remove  fixtures 
placed  thereon  by  him,  cannot,  after  he  has  surrendered  possession  to 
his  landlord,  re-enter,  and  remove  such  fixtures,  without  permission 
of  his  landlord.  Yates  v.  Bachley,  33  Wis.  185 ;  Fitzgerald  v.  Ander- 
son, 81  Wis.  341,  51  N.  W.  554;  Keefe  v.  Furlong,  96  Wis.  219,  70 
N.  W.  1110;  Friedlander  v.  Ryder,  30  Neb.  783,  47  N.  W.  83,  9  L.  R. 
A.  700. 

We  find  no  error  in  the  record.  The  judgment  of  the  circuit  court  is 
affirmed. 


PART  II 

RIGHTS  IN  REAL  PROPERTY 
(A)  Ownership 


ESTATES  IN  FEE  SIMPLE 

I.  Estates  in  Fee  Simple  * 

See  Canfield  v.  Ford,  ante,  p.  5. 


II.  Creation* 


FULLER  V.  MISSROON. 

(Supreme  Court  of  South  Carolifia,  1892.    35  S.  C.  314,  14  S.  E.  714.) 

Appeal  from  common  pleas  circuit  court  of  Charleston  county;  J. 
J.  Norton,  Judge. 

Under  the  decree  for  partition  in  the  case  of  Susan  J.  Fuller 
against  Anna  C.  Missroon  and  others,  the  master  in  chancery  sold  the 
premises  to  J.  H.  Heinsohn  on  a  contract  which  Heinsohn  afterwards 
refused  to  perform ;  and  on  the  hearing  of  a  rule  to  show  cause  spe- 
cific performance  was  decreed,  from  which  Heinsohn  appeals.  Af- 
firmed. 

PopD,  J.^  On  the  6th  day  of  February,  1829,  Thomas  Hauscome, 
of  the  city  of  Charleston,  executed  his  deed,  whereby  he  conveyed 
unto  Dr.  Thomas  Logan,  his  heirs  and  assigns,  forever,  a  certain 
house  and  lot  situate  in  Charleston  county,  upon  the  following  trusts : 
"To  suffer  and  permit  Mrs.  Ann  Holmes  and  her  husband,  for  and 
during  their  joint  lives  to  occupy  and  enjoy  said  premises,  or  to 
receive  the  income  thereof,  and  upon  the  death  of  either  of  said 
parties,  viz.,  Mrs.  Ann  Holmes  ot  her  said  husband,  then  in  trust  to 
suffer  and  permit  the  survivor  to  enjoy  the  income  thereof  during 
his  or  her  life,  and,  upon  the  death  of  the  survivor,  then  in  trust  to 

1  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  27. 

2  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  28. 

3  Part  of  the  opinion  is  omitted. 

(31) 


32  ESTATES   IN    FEE    SIMPLE 

be  absolutely  vested  in  such  issue  of  their  present  marriage  as  may  be 
living  at  the  death  of  the  survivor  aforesaid,  to  be  held  by  them,  if 
more  than  one,  as  tenants  in  common;  and  I,  th*e  said  Thomas  Haus- 
come,  do  hereby  authorize  and  empower  the  said  Dr.  Thomas  Logan, 
at  any  time  hereafter,  at  the  request  of  the  said  Mr.  and  Mrs.  Holmes 
or  the  survivor,  in  writing,  to  that  effect,  to  sell  and  dispose  of  the 
said  property  in  such  way  as  they  may  so  direct,  and  to  vest  the 
proceeds  in  any  other  species  of  property,  to  be  held,  however,  sub- 
ject to  the  trusts  mentioned  in  the  deed."  *     *     *     * 

In  construing  deeds,  courts  are  bound  to  ascertain  the  intention 
of  the  grantor,  and  give  effect  to  such  intention,  unless  the  same  is 
repugnant  to  the  law  of  the  land.  In  this  connection,  we  quote  the 
very  appropriate  language  of  the  late  Chief  Justice  Simpson  in  deliv- 
ering the  opinion  of  this  court  in  the  case  of  McCown  v.  King,  23  S. 
C.  233:  "The  object  of  construction  as  to  deeds — in  fact,  as  to  all 
papers  in  contest  before  the  courts — is  to  reach  the  intention  of  the 
parties,  because  it  is  this  that  must  control;  otherwise,  the  contract 
would  be  the  contract  of  the  court,  and  not  of  the  parties."  To  the 
same  effect  is  the  language  of  the  present  chief  justice  in  delivering 
the  opinion  of  the  court  in  the  case  of  Mellichamp  v.  Mellichamp, 
28  S.  C.  129,  5  S  E.  333.  What,  therefore,  was  the  intention  of  Haus- 
come,  as  derived  from  the  language  employed  in  this  deed?  It  is 
very  evident  that  Mrs.  Ann  Holmes  was  the  first  person  for  whom  he 
desired  to  provide;  for  the  consideration  expressed  for  the  deed  is 
"the  regard  I  have  for  Mrs.  Ann  Holmes."  The  trustee  selected  is 
her  father,  Thomas  Logan.  Hauscome  realized  that  his  desire  of 
benefiting  Mrs.  Holmes  could  only  be  exercised  by  the  employment 
of  a  trustee  to  hold  the  property  for  her;  for  at  that  time  the  wife 
could  not  hold  property  without  danger  of  its  loss,  because  of  the 
marital  rights  of  the  husband  attaching  thereto.  Hence  the  grantor 
provides  her  a  life-estate  therein.  But  he  does  more;  for  he  gives 
it  into  the  power  of  Mrs.  Holmes  to  have  the  property  sold,  and 
the  proceeds  arising  from  such  sale  invested  "in  any  other  species  of 
property,"  to  be  held  subject  to  the  trusts  enumerated  in  the  deed.  The 
grantor  is  not  satisfied  with  his  generous  provision  for  Mrs.  Ann 
Holmes ;  for  he  looks  beyond  her  life,  and  provides  that  the  house  and 
lot  should  vest  absolutely  in  her  issue  living  at  the  death  of  the  surviv- 
or of  herself  and  husband.  To  effectuate  these  appropriate  objects,  he 
grants  the  premises  in  question  to  Dr.  Logan,  "his  heirs  and  assigns, 
forever,"  upon  the  foregoing  trusts.  What  estate  did  the  grantor  in- 
tend for  such  issue?  Was  it  a  life-estate,  as  appellant  contends,  or 
was  it  an  estate  in  fee-simple,  as  is  contended  by  the  respondents  ? 

*  In  connection  with  this  case,  the  court  below  held  that  the  deed  of 
Thomas  Hauscome  to  Logan,  trustee,  created  a  fee  simple  estate  in  favor  of 
the  issue  of  the  marriage  of  Mrs.  Ann  Holmes  and  her  husband,  living  at  the 
death  of  the  survivor.  This  was  one  of  the  grounds  of  appeal,  it  being  con- 
tended by  the  appellant  that  the  above  issue  took  merely  life-estates. 


CREATION  33 

We  have,  as  in  duty  bound,  given  this  matter  the  best  consideration 
that  we  could,  under  the  circumstances  that  surround  the  members  of 
this  court;  for  we  have  studied  their  case,  carefully  considered  their 
arguments,  and  referred  to  the  authorities  cited  by  them,  respectively. 
We  are  constrained  to  hold  that  the  issue,  at  the  death  of  Mrs.  Ann 
Holmes,  in  October,  1889,  took  a  fee-simple  title  to  these  premises 
as  tenants  in  common  therein.  We  are  satisfied  that  the  principles 
announced  and  the  authorities  cited  in  the  opinion  of  the  court  in 
the  case  of  Bratton  v.  Massey,  15  S.  C.  281,  are  decisive  of  the  mat- 
ter of  the  construction  of  this  deed.  Briefly,  what  was  there  decided : 
Gilman  had  made  a  deed  of  certain  property  to  B.  H.  Massey,  his 
heirs  and  assigns,  forever,  in  trust  for  the  wife  of  Gilman,  to  be  used 
and  enjoyed  by  her  as  if  she  were  sole  and  unmarried,  with  power  in 
her  to  have  her  trustee  sell  any  or  all  of  the  property,  real  or  personal, 
such  trustee  to  make  titles  to  such  property  so  sold,  and  with  full 
power  to  devise  or  bequeath  the  same  by  will.  Mrs.  Gilman  died 
after  her  husband,  not  having  made  a  will.  Gilman  having  died  in- 
solvent, his  creditors  sought  tO'  make  the  property  held  by  the  trustee 
liable  to  Gilman's  debts,  on  the  ground  that,  by  the  terms  of  the 
deed,  no  provision  was  made  of  aught  but  a  life-estate  to  Mrs.  Gil- 
man, and  therefore  that  her  heirs  could  not  inherit  the  same.  But  the 
court  held  that  the  intention  of  Gilman  was  that  his  wife  should  have 
the  fee-simple  to  such  property.  The  court  admitted  in  that  case  that 
the  trusts  were  not  created  to  Mrs.  Gilman  and  her  heirs  by  words  to 
that  efirect,  and  that  it  was  true  that  in  the  conveyance  of  a  legal 
estate  the  word  "heirs"  is  necessary  to  create  a  fee-simple,  and  also, 
as  a  general  proposition,  that  courts  of  equity,  in  construing  limita- 
tions of  trusts,  adopt  the  rules  of  law  applicable  to  the  legal  estate. 
(Washb.  Real  Prop.  bk.  2,  c.  3,  §  2,)  yet,  as  the  same  writer,  Mr. 
Washburne,  says,  at  page  40  of  the  same  section,  there  are  some  ex- 
ceptions to  such  rule,  one  of  which  he  states  as  follows :  "Another  ex- 
ception is  that  the  word  'heirs'  is  not  always  necessary  in  order  to  give 
an  equitable  estate  the  character  of  inheritability,  if  it  requires  that 
such  an  effect  should  be  given  to  carry  out  the  clear  intention  of  the 
party  creating  it.  Thus  it  is  said,  if  land  be  given  to  a  man  without 
the  word  'heirs,'  and  a  trustee  be  declared  of  that  estate,  and  it  can  be 
satisfied  in  no  other  way  but  by  the  cestui  que  trust  taking  an  inherit- 
ance, it  has  been  construed  that  a  fee  passes  to  him,  even  without  the 
use  of  the  word  'heirs.'  "  Citing  the  cases  of  Villiers  v.  Villiers,  2 
Atk.  71,  and  Fisher  v.  Fields,  10  Johns.  (N.  Y.)  505,  in  both  of  which 
cases  deeds,  not  wills,  were  being  construed.  This  decision  quoted  the 
words  of  Kent,  C.  J.,  in  Fisher  v.  Fields,  supra:  "There  never  was 
a  greater  mistake,  as  I  apprehend,  than  the  supposition  that  this  trans- 
fer of  the  soldier's  rights  to  Birch  is  to  be  tested  by  the  strict  technical 
rules  of  a  conveyance  of  land  at  common  law,  and  that  Birch  did  not 

Bued.Cas.Real  Prop. — 3 


34  ESTATES  IN    FEE    SIMPLE 

take  the  whole  interest  of  the  soldier,  because  the  word  'heirs'  was  not 
^inserted  in  the  assignment."  Again :  "A  trustee  or  cestui  que  trust 
will  take  a  fee  without  the  word  'heirs'  where  a  less  estate  will  not  be 
sufficient  to  satisfy  the  purposes  of  the  trust."  Again:  "A  trust 
is  merely  what  a  use  was  before  the  statute  of  uses,  and  the  same 
rules  apply  to  trusts  in  chancery  now  which  were  formerly  applied  to 
uses ;  and  in  exercising  its  jurisdiction  over  executory  trusts  the  court 
of  chancery  is  not  bound  by  the  technical  rules  of  law,  but  takes  a 
wider  range,  in  favor  of  the  intent  of  the  party." 

In  the  case  of  Bratton  v.  Massey,  supra,  the  court  seized  upon  the 
almost  unlimited  power  of  disposition  given  to  Mrs.  Oilman  to  deduce 
the  intention  of  the  grantor  that  the  estate  created  by  his  deed  was  a 
fee-simple,  by,  in  effect,  supplying  the  word  "heirs."  In  the  case  at 
bar  the  intention  of  the  grantor,  after  the  termination  of  the  life-es- 
tate therein  created,  to  vest  the  fee  in  "issue"  living  at  death  of  sur- 
vivor, is  also  made  manifest  by  the  terms  of  the  instrument;  the 
same  power  of  sale  over  the  entire  premises.  In  Bratton  v.  IMassey, 
no  words  of  inheritance  were  used.  In  the  case  at  bar  tlie  words  "to 
vest  in  issue  absolutely"  are  found.  It  is  true  in  the  case  of  Menden- 
hall  v.  Mower,  16  S.  C.  303,  this  court  said :  "But  the  word  used  in 
this  case  is  the  word  'issued.'  This,  as  to  real  property,  is  not  the  apt 
word  of  inheritance,  and  does  not  in  itself  [italics  ours]  carry  a  fee 
in  a  deed.  Hence,  when  this  word  is  used  in  a  deed,  the  question  is 
open  as  to  the  intent  of  the  grantor."  Fortunately,  the  words  "to 
vest  absolutely"  occur  here.  As  said  by  the  circuit  judge :  "Mr. 
Blackstone,  in  2  Comni.  p.  104,  in  speaking  of  freehold  estates  of 
inheritance,  uses  'absolutely'  as  synonymous  with  'fee-simple.'  "  In 
Rapalje  &  Lawrence's  Law  Dictionary,  in  speaking  of  the  owner  of 
the  estate  in  fee-simple,  it  is  said  he  "is  the  absolute  owner  of  land 
or  other  realty."  The  same  dictionary,  in  speaking  of  the  legal  defini- 
tion of  the  term  "absolute,"  says  the  meaning  is,  ''complete,  final,  per- 
fect, unconditional,  unrestricted." 

But  we  are  not  left  to  this  examination  without  some  decisions  from 
our  court  of  last  resort.  In  Myers  v.  Anderson,  1  Strob.  Eq.  344,  47 
Am.  Dec.  537,  after  the  bequest  for  life,  the  limitation  was  to  the  is- 
sue, to  be  their  absolute  property  forever.  The  word  "absolute" 
carried  the  fee.  Chancellor  Johnston,  in  delivering  the  opinion  of  the 
court,  said :  "It  appears  to  the  court  that  the  testator  in  this  case,  by 
the  gift  to  the  issue,  not  only  of  the  property  or  slaves,  but  of  the 
absolute  property  in  them  (a  term  importing  the  quantity  of  interest 
intended  to  be  given)  has  as  effectually  given  them  the  fee  (so  to 
speak)  as  if  the  bequest  had  been  made  to  the  issue  and  their  heirs, 
and  that  the  gift  of  the  absolute  property  or  fee  rebuts  the  idea  that 
he  intended,"  etc.  In  McLure  v.  Young.  3  Rich.  Eq.  559,  the  court 
quoted  approvingly  the  language  in  the  foregoing  case,  and  held  the 
words  after  a  life-estate,  "to  lineal  descendants  absolutely  and   for- 


CREATION  35 

ever,"  to  mean  that  such  descendants  took  as  purchasers.  See  the 
effect  in  this  same  direction  of  the  case  of  Moseley  v.  Hankinson,  22  S. 
C.  323.  The  use  of  the  five  doHars  paid  by  the  trustee  to  the  grantor 
is  in  support  of  this  view.  AMiile  it  is  true  the  only  evidence  of,  this 
payment  is  in  the  recital  of  the  deed  itself,  yet  the  only  person  who 
could  gainsay  it  would  be  a  creditor  of  the  grantor.  It  would  cer- 
tainly bind  his  heir  so  as  to  prevent  a  reverter.  A  very  slight  cir- 
cumstance in  the  way  of  consideration,  even  if  it  be  "a  peppercorn," 
our  own  courts  declare,  will  be  sufficient  evidence  of  the  intention  cf 
the  parties  to  carry  the  whole  estate.     *     *     *  s 


BARNETT  v.  BARNETT. 

{Court  of  Appeals  of  Maryland,  1912.     117  Md.  265,  83  Atl,  160,  Aun.  Cas. 

1913E,  1284.) 

Appeal  from  Circuit  Court  of  Baltimore  County. 

Action  between  Amelia  Emma  Barnett  and  De  Warren  Beauregard 
Barnett  and  others.  From  the  decree,  Amelia  Emma  Barnett  appeals. 
Affirmed. 

Argued  before  Boyd,  C.  J.,  and  Briscoi;,  Pearce,  BurkE,  Thomas, 
Pattison,  Urner,  and  Stockbridge,  JJ. 

Stockbridge,  J.  On  December  5,  1888,  Amelia  Elizabeth  Barnett 
executed  her  will  for  the  express  purpose  of  "making  some  disposition 
of  my  real  estate."  By  this  instrument  she  provided  that,  in  the  event 
of  her  husband  surviving  her,  he  should  have  entire  control  of  the 
farm  belonging  to  her  on  the  Reisterstown  turnpike  road,  in  Baltimore 
county,  comprising  about  63  acres,  but  without  the  power  to  sell  the 
farm  or  any  part  of  it,  or  to  permit  it  to  be  incumbered  by  debts  or 
mortgages,  or  to  depreciate  from  neglect,  and  with  the  further  ex- 
pressed wish  that  her  unmarried  children  should  "have  a  comfortable 
support  from  the  proceeds  of  the  farm."  At  her  husband's  death,  and 
after  all  debts  were  paid,  and  the  sum  of  $3,000  paid  to  her  daughter, 
Amelia  Emma  Barnett,  her  will  continues  as  follows : 

"Then  an  equal  division  of  my  property,  or  if  sold,  an  equal  division 
of  proceeds  among  my  five  children,  Amelia  Emma  Barnett,  Estella 

5  It  is  familiar  doctrine  that  a  trustee  will  take  a  fee  without  words  of  in- 
heritance when  necessary  for  the  purposes  of  the  trust.  See  Chamberlain  v. 
Thompson,  10  Conn.  243,  26  Am.  Dec.  390  (1834),  holding  that  the  doctrine  Is  a 
general  one,  and  applies  to  trusts  created  by  deed  as  well  as  to  trusts  created 
by  will.  And  see  Packard  v.  Old  Colony  R.  Co.,  168  Mass.  92,  46  N.  E.  433 
(1897),  holding  that,  where  a  deed  in  trust  for  a  cemetery  corporation  requir- 
ed a  legal  estate  in  the  trustees  for  a  period  beyond  their  own  lives,  they  will 
take  in  fee,  although  no  words  of  limitation  to  heirs  were  used.  In  Allen  v, 
Baskerville,  123  N.  C.  126.  31  S.  E.  383  (1898),  it  is  held,  however,  that  where 
a  deed  fails  to  convey  a  title  in  fee  to  a  trustee  for  a  beneficiary  which  has 
no  corporate  existence  (a  certain  academy),  the  court  cannot  supply  the  words, 
"and  his  heirs,"  after  the  name  of  the  trustee,  when  there  is  no  allc:jation 
that  the  words  were  omitted  by  mistake. 


36  ESTATES   IN  FEE   SIMPLE 

Virginia  Barnett,  Jessie  Davis  Barnett,  De  Warren  Beauregard  Bar- 
nett,  Florence  Lee  Barnett,  and  in  the  event  of  the  death  of  any  of  my 
children  before  the  settlement  of  the  estate,  then  their  portion  shall  go 
to  their  children,  but  if  they  have  no  children,  then  their  portion  shall 
be  equally  divided  among  my  surviving  children,  and  to  the  children 
left  by  any  of  my  other  deceased  children,  should  there  be  any.  It  is 
my  desire  that  my  children  shall  have  their  portion  of  my  estate  for 
their  exclusive  benefit  or  maintenance  and  at  their  death  go  to  their 
children  absolutely,  but  if  any  of  my  children  should  marry  and  die 
without  children  then  their  portion  shall  revert  to  my  surviving  chil- 
dren and  children  left  by  any  of  my  deceased  children." 

Nine  years  after  the  execution  of  this  will  the  testatrix  executed  a 
codicil  in  the  following  language : 

"Finding  portions  of  my  original  will  not  arranged  to  my  entire  sat- 
isfaction I  desire  to  make  some  alterations, 

"I  desire  all  of  my  children  to  have  absolute  control  of  their  portion 
of  my  estate.  I  also  desire  that  my  children  shall  be  very  guarded  in 
advancing  their  money  to  anyone.  Should  any  loan  be  made  to  secure 
themselves  against  loss  and  in  the  event  of  the  death  of  any  of  my  chil- 
dren without  issue  what  remains  of  their  portion  shall  revert  to  my 
living  children  and  children  of  my  deceased  children  should  there  be 
any. 

"It  is  my  express  desire  that  there  shall  be  no  dissention  among  my 
heirs  over  the  division  of  my  estate,  and  I  furthermore  stipulate  that 
my  property  shall  not  be  forced  into  market  and  sacrificed,  but  shall 
be  held  at  least  five  years  unless  they  can  all  agree  to  dispose  of  same 
to  advantage  before  the  expiration  of  five  years." 

The  testatrix  died  on  the  1st  July,  1900,  leaving  her  husband  surviv- 
ing her,  and  he  died  in  February,  1909.  The  children  of  the  testatrix 
are  all  adults,  and  the  record  in  this  case  discloses  but  a  single  question 
which  this  court  is  called  to  pass  upon. 

That  question  involves  a  construction  of  the  will,  and  the  determina- 
tion whether  the  language  of  the  will  and  codicil  operate  to  vest  in  the 
children  of  the  testatrix  an  absolute  fee  or  a  life  estate  only.  The  ex- 
press terms  of  the  will  created  in  the  husband  of  the  testatrix  a  life 
estate  which  has  now  been  terminated  by  his  death.  The  limitation  up- 
on sale  imposed  by  the  concluding  words  of  the  codicil,  being  a  time 
limitation  of  five  years,  has  now  expired,  more  than  the  stipulated  pe- 
riod having  passed  since  both  the  execution  of  the  codicil  and  the  death 
of  the  testatrix. 

The  rules  of  construction  are  simple  and  readily  understood.  Thus 
it  has  always  been  recognized  that  wills  are  to  be  construed  more  liber- 
ally than  deeds,  in  order  that  the  intention  of  a  testator  may  be  carried 
into  effect,  and  therefore,  in  order  to  pass  a  fee,  it  is  not  necessary  to 
make  a  strict  use  of  technical  expressions.  Page  on  Wills,  §  561.  It 
is  always  the  object  of  the  court  to  ascertain,  if  possible,  the  intention 
of  the  testator,  and  to  do  that  the  particular  situation  of  the  testator,  or 


CREATION  37 

Other  circumstances  which  existed  at  the  time  of  the  execution  of  the  in- 
strument, are  always  proper  subject-matters  of  consideration  in  con- 
nection with  the  language  which  is  actually  employed.  Henderson  v. 
Henderson,  64  Md.  185,  1  Atl.  72 ;  Levi  v.  Bergman,  94  Md.  204,  50 
Atl.  515. 

The  testimony  in  this  case  abundantly  establishes  the  character  of 
the  relation  which  existed  between  Mrs.  Barnett  and  her  children  to 
have  been  one  of  entire  confidence.  The  subject-matter  of  the  will  and 
its  provisions  were  talked  over  in  the  family  as  a  matter  of  general 
interest  and  agreement  prior  to  the  execution  of  the  will. 

The  provision  for  the  life  estate  for  her  husband,  if  he  survived  her. 
was  made  in  clear  and  apposite  terms.  It  was  only  when  she  came  to 
make  the  provision  for  the  devolution  of  the  property  after  his  life  es- 
tate that  any  question  could  arise.  Even  then  it  is  by  no  means  clear 
that  it  was  the  intent  of  the  testatrix  to  create  a  life  estate  in  the  chil- 
dren, for  the  reason  that  express  provision  is. made  for  a  division  of 
the  proceeds  of  the  property.  But  even  if  it  be  assumed  that  by  rea- 
son of  the  strict  construction  of  the  language  employed  in  the  will 
there  were  created  successive  life  estates  in  her  husband,  and  then  in 
her  children,  that  doubt  was  entirely  removed  by  tbe  first  paragraph 
of  the  codicil,  where  the  language  is  plain  and  unmistakable.  She  there 
said :  "I  desire  all  of  my  children  to  have  absolute  control  of  their  por- 
tion of  my  esta-Ie^**  It  is  true  she  does  not  use  the  words,  "in  fee,"  or 
"heirs,"  but  the  terms  "absolute,"  or  "absolute  control,"  or  "absolute 
disposal,"  have  a  well-defined  signification  in  testamentary  law.  Thus 
it  is  said  in  the  case  of  Greenawalt  v.  Greenawalt,  71  Pa.  487,  that 
"absolute"  is  not  a  word  used  to  distinguish  a  fee  from  a  life  estate, 
but  to  distinguish  a  qualified  or  conditional  from  a  fee-simple  estate ; 
and  in  the  will  which  was  under  construction  in  Jackson  v.  Babcock, 
12  Johiis.  (N.  Y.)  393,  the  term  "absolute  disposal,"  was  held  to  vest  a 
fee  in  the  devisee.  See,  also,  Anders  v.  Gerhard,  140  Pa.  153,  21  Atl. 
253 ;  Dills  v.  Adams  (Ky.)  43  S.  W.  680.  And  in  the  case  of  Johnson 
v.  Mcintosh,  8  Wheat.  588,  5  L.  Ed.  681,  it  was  said  by  Chief  Justice 
Marshall  that  "an  absolute  must  be  an  exclusive  title,  or  at  least  a  title 
which  excludes  all  others  not  compatible  with  it."  See,  also,  cases  cit- 
ed in  1  Words  and  Phrases,  p.  38  et  seq. 

But  even  as  further  indicating  the  intention  of  the  testatrix  in  this 
case,  the  concluding  words  of  the  codicil,  where  a  limitation  of  time  is 
sought  to  be  placed  upon  any  alienation  of  the  property,  the  language 
of  the  testatrix  clearly  indicates  a  power  of  disposal  even  within  that 
time  by  the  agreement  of  all  of  the  parties,  an  intention  entirely  incon- 
sistent with  the  creation  of  a  life  estate,  and,  if  the  devise  in  this  case 
were  to  be  treated  in  the  nature  of  a  general  devise  with  a  power,  it 
would  come  under  the  ruling  of  this  court  in  the  case  of  Welsh  v.  Gist, 
101  Md.  606,  61  Atl.  665,  where  the  late  Chief  Justice  McSherry  said : 
That  if  "an  estate  is  given  to  a  person  generally  or  indefinitely,  with  a 
power  of  disposition,  such  gift  carries  the  entire  estate,  and  the  devisee 


38  ESTATES   IN   FEE    SIMPLE 

or  legatee  takes,  not  a  simple  power,  but  the  property  absolutely." 
Without  prolonging  this  opinion  further,  it  is  sufficient  to  say  that  the 
construction  placed  upon  the  will  and  codicil  of  Amelia  Elizabeth  Bar- 
nett  by  the  circuit  court  for  Baltimore  county  as  set  forth  in  the  decree 
of  July  22,  1911,  was  correct,  and  that  decree  will  be  affirmed. 
Decree  affirmed,  costs  to  be  paid  out  of  the  estate.** 

«  Although,  at  common  law,  the  word  "heirs"  is  not  necessary  in  a  devise 
for  the  imrpcse  of  passing  the  fee  (Bassett  v.  Nickersoii,  1S4  Mass.  169,  (38  X. 
E.  25  [1903].  But  see  Gannon  v.  Albright,  1S3  Mo.  238,  81  S.  W.  1162,  67  L. 
R.  A.  97,  105  Am.  St.  Rep.  471  [1904]),  yet  the  intention  of  the  testator  to  cre- 
ate an  estate  of  this  character  must  be  manifest  from  the  will  (Little  v.  Giles, 
25  X'eb.  313.  41  N.  W.  186  [1889]).  A  devise  in  '-fee  simple"  (2  Jar.  Wills,  253), 
or  to  one  "forever"  (Idle  v.  Cooke,  2  Ld.  Ray.  1144,  1152),  has,  for  example, 
been  held  sufficient  to  pass  the  fee.  Likewise,  a  devise  of  "all  my  estate" 
(Webster  v.  Wiggin,  19  R.  I.  73,  31  Atl.  824,  28  L.  R.  A.  510  [1895]) ;  of  "all 
my  real  estate"  (Boston  Safe  Deposit,  etc.,  Co.  v.  Stich,  61  Kan.  474.  59  Pac. 
10S2  [1900]);  of  my  "land"  (Williams  v.  Parker,  84  N.  C.  90  [1881]),  has  been 
held  sufficient  to  pass  a  fee.  It  has  been  held,  however,  that  the  use  of  the 
word  "tenements"  when  used  alone  will  not  pass  a  fee.  Wright  v.  Page,  10 
Wheat.  204,  6  L.  Ed.  303  (1825). 


ESTATES   Iir  FEE   TAIL  39 


ESTATES  IN  FEE  TAIL 
I.  Origin  of  Estates  Tail* 


EWING  V.  NESBITT. 
(Supreme  Court  of  Kansas,  1913.    88  Kan.  708,  129  Pac.  1131.) 

Appeal  from  District  Court,  Johnson  County, 

Action  by  Thomas  J.  Ewing  and  others  against  William  J.  Nesbitt. 
Judgment  for  defendant,  and  plaintiffs  appeal.    Affirmed. 

BuRCH,  J.  In  the  year  1893  John  Ewing  made  his  will.  The  fourth 
paragraph  re^ds  as  follows:  "Fourth.  I  will  and  bequeath  to  my 
daughter,  Mary  A.  Nesbitt,  nee  Ewing,  and  to  the  heirs  of  her  body, 
the  south  half  (%)  of  the  northwest  quarter  (%)  of  section  No.  twen- 
ty-one (21),  township  thirteen  (13),  of  range  twenty-four  (24),  in  John- 
son county,  Kansas." 

Devises  using  the  same  language  were  made  to  the  testator's  other 
children,  four  in  number.  Besides  these,  the  will  contained  four  other 
devises,  which  were  expressly  stated  to  be  "free  and  clear  of  all  entail- 
ment," thus  clearly  indicating  the  intention  of  the  testator  to  create 
estates  tail  by  the  phraseology  employed  in  paragraph  4  and  those  like 
it.  In  1895  John  Ewing  died,  leaving  as  his  heirs  the  five  children,  who 
were  the  beneficiaries  of  his  will.  The  will  was  duly  probated,  the  es- 
tate was  administered  and  closed,  and  Mary  A.  Nesbitt  entered  into 
possession  of  the  tract  of  land  devised  to  her.  In  the  year  1909  she 
died  without  having  borne  children,  and  was  survived  by  her  husband, 
William  J.  Nesbitt,  who  continued  in  possession  of  the  land.  Soon 
after  Mary  A.  Nesbitt's  death  her  brothers  and  sisters  commenced  an 
action  of  ejectment,  and  for  rents  and  profits,  against  William  J.  Nes- 
bitt, claiming  to  be  owners  in  fee  simple.  He  answered,  claiming  a 
one-fifth  interest  in  the  land,  and  praying  for  partition.  Judgment  was 
rendered  for  the  defendant,  and  the  plaintiffs  appeal. 

The  will  contained  a  residuary  clause,  in  which  the  testator  gave  to 
his  children  surviving  him,  share  and  share  alike,  "all  other  property, 
goods,  chattels,  moneys,  stocks,  credits,  and  effects"  of  which  he  might 
die  seised.  The  defendant  claims  that  his  wife  was  the  donee  of  an 
estate  tail ;  that  the  donor  retained  a  reversionary  interest  in  fee  sim- 
ple expectant  upon  the  estate  tail ;  that  if,  by  virtue  of  the  residuary 
clause  of  the  will,  this  reversion  was  not  disposed  of  it  descended,  up- 
on the  death  of  the  donor,  to  his  heirs,  one  of  whom  was  his  daughter, 
Mary  A.  Nesbitt;  and  that  upon  her  death  the  defendant,  as  her  sur- 
viving husband,  took  her  share  of  the  fee,  which  was  one-fifth.     If, 

1  For  discussion  of  principles,  see  Burclick,  Real  Prop.  §  32. 


40  ESTATES    IN    FEE    TAIL 

however,  the  residuary  clause  of  the  will  was  effectual  to  devise  the  re- 
version to  the  testator's  children,  Mary  A.  Nesbitt  took  a  one-fifth  in- 
terest, which,  upon  her  death,  descended  to  the  defendant.  Under  ei- 
ther theory  the  defendant's  claim  to  a  one-fifth  interest  in  the  land  is 
valid,  if  the  law  of  this  state  recognizes  estates  tail  as  they  existed  un- 
der the  common  law  of  England  at  the  time  of  the  colonization  of  this 
country. 

Under  the  early  common  law  a  grant  to  a  man  and  the  heirs  of  his 
body  was  a  grant  of  a  fee,  on  condition  that  he  had  heirs  of  his  body. 
The  fee  so  granted  was  designated  a  conditional  fee.  If  the  donee  had 
no  heirs  of  his  body,  the  condition  was  not  performed,  and  the  land 
reverted  to  the  donor.  If  heirs  of  the  donee's  body  were  born,  the 
condition  was  regarded  as  performed,  and  the  donee  was  at  liberty  to 
make  a  conveyance  which  would  bar  him,  his  issue,  and  the  donor's  re- 
version. He  could  likewise  charge  the  land  with  rents  and  incum- 
brances which  would  bind  his  issue,  and  the  estate  was  forfeitable  for 
his  treason.  If  the  condition  were  performed,  but  the  donee  made  no 
conveyance,  the  land  descended,  upon  his  death,  to  the  specified  issue, 
who  were  at  liberty  to  convey.  If  they  made  no  conveyance,  the  land 
reverted  to  the  donor.  If  the  condition  were  performed,  but  the  issue 
died,  and  the  donee  then  died  without  having  made  a  conveyance,  the 
land  reverted  to  the  donor.  In  order  to  bar  the  possibility  of  reverter 
to  the  donor  and  to  restore  the  descent  to  its  ordinary  course  under  the 
common  law,  donees  of  conditional  fees  were  in  the  habit  of  making 
conveyances  as  soon  as  issue  was  born  and  taking  back  warranty  deeds. 

To  stop  this  practice,  which  evaded  the  condition  and  defeated  the 
intention  of  the  donor,  the  nobility  of  the  realm,  who  were  desirous  of 
perpetuating  family  possessions,  procured  the  passage  of  the  statute  of 
Westminster  II,  known  as  the  statute  "de  donis  conditionalibus."  13 
Ed.  I,  c.  1,  June  28,  1285.  This  statute  took  away  the  power  of  aliena- 
tion, and  declared  that  the  will  of  the  donor,  plainly  expressed,  should 
be  observed,  and  that  tenements  given  to  a  man  and  the  heirs  of  his 
body  should  go  to  his  issue  if  there  were  any,  and,  if  not,  should  revert 
to  the  donor.  The  judges  interpreted  this  statute  to  mean  that  the 
donee  no  longer  took  a  conditional  fee  capable  of  being  disposed  of 
as  soon  as  issue  was  born,  but  that  he  took  a  particular  estate,  denomi- 
nated an  estate  tail,  and  that,  instead  of  a  possibility  of  reverter  only 
remaining  in  the  donor,  he  had  a  reversion  in  fee  simple  expectant  upon 
the  failure  of  issue.  Some  of  the  social  consequences  of  this  statute 
are  thus  described  by  Blackstone:  "Children  grew  disobedient  when 
they  knew  they  could  not  be  set  aside ;  farmers  were  ousted  of  their 
leases  made  by  tenants  in  tail;  for,  if  such  leases  had  been  valid,  then, 
under  colour  of  long  leases,  the  issue  might  have  been  virtually  dis- 
inherited ;  creditors  were  defrauded  of  their  debts ;  for,  if  a  tenant 
in  tail  could  have  charged  his  estate  with  their  payment,  he  might  also 
have  defeated  his  issue  by  mortgaging  it  for  as  much  as  it  was  worth  ; 
innumerable  latent  entails  were  produced  to  deprive  purchasers  of  the 


ORIGIN   OF   ESTATES  TAIL  41 

lands  they  had  fairly  bought,  of  suits  in  consequence  of  which  our  an- 
cient books  are  full ;  and  treasons  were  encouraged,  as  estates  tail 
were  not  liable  to  forfeiture  longer  than  for  the  tenant's  life.  So  that 
they  were  justly  branded  as  the  source  of  new  contentions  and  mis- 
chiefs unknown  to  the  common  law,  and  almost  universally  considered 
as  the  common  grievance  of  the  realm."  2  Commentaries,  *116.  Not- 
withstanding these  mischiefs,  the  statute  forms  one  of  the  fundamental 
institutes  of  the  land  law  of  England,  which  thr^e  and  a  quarter  cen- 
turies later  was  transplanted  in  the  New  World. 

Before  the  settlement  at  Jamestown  in  the  fourth  year  of  James  I 
(1607),  a  number  of  statutes  had  been  passed  whereby  the  privileges  at- 
tending estates  tail  were  much  abridged.  They  were  made  forfeitable 
for  treason,  26  Henry  VIII,  c.  39.  Certain  leases  by  the  tenant  in 
tail,  not  prejudicial  to  the  issue,  were  allowed  to  be  good  in  law.  32 
Henry  VIII,  c.  28.  The  statute  of  fines  (4  Henry  VII,  c.  24)  was  con- 
strued to  permit  the  tenant  in  tail  and  his  heirs  to  be  barred  by  levying 
a  fine.  32  Henry  VIII,  c.  36.  Such  estates  were  chargeable  with  the 
payment  of  certain  debts  due  the  king  (33  Henry  VIII,  c.  39),  and  by 
construction  of  the  statute  43  Eliz.  c.  4,  an  appointment  to  charitable 
uses  by  a  tenant  in  tail  was  held  to  be  good.  2  Bl.  Com.  117  et  seq. 
The  most  serious  blow,  however,  to  the  evils  fostered  by  estates  tail 
under  the  statute  de  donis  was  struck  by  a  bold  piece  of  judicial  legis- 
lation. In  Taltarum's  Case,  reported  in  Year  Book,  12  Edw.  IV,  19 
(1472),  the  judges,  upon  consultation,  held  that  a  common  recovery 
suffered  by  a  tenant  in  tail  accomplished  the  complete  destruction  of 
the  estate  tail. 

This  mode  of  barring  estates  tail  is  thus  described  in  1  Washburn 
on  Real  Property  (6th  Ed.)  §  186:  "This  was  a  fictitious  suit,  brought 
in  the  name  of  the  person  who  was  to  purchase  the  estate,  against  the 
tenant  in  tail,  who  was  willing  to  convey.  The  tenant,  instead  of  re- 
sisting this  claim  himself,  under  the  pretense  that  he  had  acquired  his 
title  of  some  third  person  who  had  warranted  it,  vouched  in,  or  by  a 
process  from  the  court,  called  his  third  person,  technically  the  vouchee, 
to  come  in  and  defend  the  title.  The  vouchee  came  in  as  one  of  the 
dramatis  personae  of  this  judicial  farce,  and  then,  without  saying  a 
word,  disappeared  and  was  defaulted.  It  was  a  principle  of  the  feudal 
law,  adopted  thence  by  the  common  law,  that  if  a  man  conveyed  lands 
with  a  warranty,  and  the  grantee  lost  his  estate  by  eviction  by  one  hav- 
ing a  better  title,  he  should  give  his  warrantee  lands  of  equal  value  by 
way  of  recompense.  And  as  it  would  be  too  barefaced  to  cut  off  the 
rights  of  reversion,  as  well  as  of  the  issue  in  tail,  by  a  judgment  be- 
tween the  tenant  and  a  stranger,  it  was  gravely  adjudged,  first,  that  the 
claimant  should  have  the  land  as  having  the  better  title  to  it ;  and  sec- 
ond, that  the  tenant  should  have  judgment  against  his  vouchee  to  re- 
cover lands  of  equal  value,  on  the  ground  that  he  was  warrantor,  and 
thus,  theoretically,  nobody  was  harmed.  If  the  issue  in  tail  or  the  re- 
versioner or  remainderman  lost  that  specific  estate,  he  was  to  have  one 


42  ESTATES    IN    FEE    TAIL 

of  equal  value  through  this  judgment  in  favor  of  the  tenant  in  tail; 
whereas,  in  fact,  the  vouchee  was  an  irresponsible  man,  and  it  was 
never  expected  that  he  was  anything  more  than  a  dummy  in  the  game. 
The  result  of  this,  which  Blackstone  calls  'a.  kind  of  pia  fraus  to  elude 
the  statute  de  donis,'  was  that  the  lands  passed  from  the  tenant  in  tail 
to  the  claimant  in  fee  simple,  free  from  the  claims  of  reversioner,  re- 
mainderman, or  issue  in  tail,  and  he  either  paid  the  tenant  for  it  as  a 
purchaser,  or  conveyed  it  back  to  him  again  in  fee  simple." 

The  precedent  of  fictitious  suits  as  means  of  acquiring  or  conveying 
property  was  found  in  the  Roman  law,  and  the  practice  of  resorting  to 
them  was  supposedly  introduced  in  England  by  the  clergy  to  evade 
the  statute  of  mortmain.  Spence's  Equitable  Jurisdiction  of  the  Court 
of  Chancery,  114,  note.  The  solemn  piece  of  jugglery  already  describ- 
ed later  became  more  involved.  "Complex,  however,  as  the  proceed- 
ings above  related  may  appear,  the  ordinary  forms  of  a  common  recov- 
ery in  later  times  were  more  complicated  still ;  for  it  was  found  expe- 
dient not  to  bring  the  collusive  action  against  the  tenant  in  tail  himself. 
but  that  he  should  come  in  as  one  vouched  to  warranty.  The  lands 
were  therefore,  in  the  first  place,  conveyed,  by  a  deed  called  the  recov- 
ery deed,  to  a  person  against  whom  the  action  was  to  be  brought,  and 
who  was  called  the  tenant  to  the  praecipe  or  writ.  The  proceedings  then 
took  place  in  the  Court  of  Common  Pleas,  which  had  an  exclusive  jur- 
isdiction in  all  real  actions.  A  regular  writ  was  issued  against  the  ten- 
ant to  the  praecipe  by  another  person,  called  the  demandant ;  and  the 
tenant  in  tail  was  then  vouched  to  warranty  by  the  tenant  to  the  prae- 
cipe. The  tenant  in  tail,  on  being  vouched,  then  vouched  to  warranty 
in  the  same  way  the  crier  of  the  court,  who  was  called  the  common 
vouchee.  The  demandant  then  craved  leave  to  imparl  or  confer  with 
the  last  vouchee  in  private,  which  was  granted  by  the  court ;  and  the 
vouchee,  having  thus  got  out  of  court,  did  not  return,  in  consequence 
of  which  judgment  was  given  in  the  manner  before  mentioned,  on 
which  a  regular  writ  was  directed  to  the  sheriff  to  put  the  demandant 
into  possession."    Williams  on  Real  Property  (17th  Ed.)  108. 

In  all  cases  there  was  an  agreement  or  understanding  that  the  person 
who  acquired  an  estate  tail  by  means  of  a  common  recovery  should  pay 
for  it,  or  convey  it  to  the  original  tenant  in  tail  in  fee  simple,  or  dis- 
pose of  it  as  such  tenant  might  direct.  The  result  was  that  estates  tail 
and  all  remainders  over  and  the  reversion  were  effectually  barred.  As 
Blackstone  said,  by  long  acquiescence  and  use  these  recoveries  came  to 
be  looked  upon  as  a  legal  mode  of  conveyance,  by  which  a  tenant  in 
tail  might  dispose  of  his  land.  2  Com.  117.  This  right  of  conveyance 
became,  in  contemplation  of  the  law,  an  inhe"rehl  and  inseparable  in- 
cident of  an  estate  tail,  and  covenants  and  conditions  attempting  to  re- 
strain the  exercise  of  the  right  were  held  to  be  void.  2  Washburn  on 
Real  Property,  188.  The  same  purpose  was  accomplished  by  the  equal- 
ly fictitious  proceeding  of  fine. 


ORIGIN   OF    ESTATES   TAIL  ^ 

In  llie  fourth  volume  of  his  Commentaries  (14th  Ed.)  *14,  Chancellor 
Kent  said :  "Estates  tail  were  introduced  into  this  country  with  the 
other  parts  of  the  English  jurisprudence,  and  they  subsisted  in  full 
force  before  our  Revolution,  subject  equally  to  the  power  of  being  bar- 
red by  a  fine  or  common  recovery."  These  estates  are  now  very  gen- 
erally changed  by  legislation  into  fee  simples,  or  reversionary  estates  in 
fee  simple,  or  may  be  converted  into  fee  simples  by  ordinary  convey- 
ance. 2  Bl.  Com.  119,  Cooky's  note.  In  the  pages  following  the  above 
quotation  from  Kent,  much  of  this  legislation  is  referred  to. 

The  territorial  Legislature  of  1855  passed  an  elaborate  act  relating 
to  conveyances.  Stat,  of  Kan.  Terr.  1855,  c.  26.  Section  5  of  this  act 
reads  as  follows :  "That  from  and  after  the  passage  of  this  act,  where 
any  conveyance  or  devise  shall  be  made  whereby  the  grantee  or  devisee 
shall  become  seised  in  law  or  equity  of  such  state,  in  any  lands  or  ten- 
ments,  as  under  the  statute  of  the  thirteenth  of  Edward  the  First  (call- 
ed the  statute  of  entails),  would  have  been  held  an  estate  in  fee  tail,  ev- 
ery such  conveyance  or  devise  shall  vest  an  estate  for  life  only  in  such 
grantee  or  devisee,  who  shall  possess  and  have  the  same  power  over 
and  right  in  such  premises,  and  no  other,  as  a  tenant  for  life  thereof 
would  have  by  law ;  and  upon  the  death  of  such  grantee  or  devisee,  the 
said  lands  and  tenements  shall  go  and  be  vested  in  the  children  of  such 
grantee  or  devisee,  equally  to  be  divided  between  them  as  tenants  in 
common,  in  fee ;  and  if  there  be  only  one  child,  then  to  that  one,  in  fee ; 
and  if  any  child  be  dead,  the  part  which  would  have  come  to  him  or 
her  shall  go  to  his  or  her  issue ;  and  if  there  be  no  issue,  then  to  his  or 
her  heirs." 

This,  of  course,  constituted  a  deliberate  legislative  modification  of 
the  common  law  relating  to  estates  tail.  In  1859  the  territorial  Legis- 
lature completely  revised  the  act  of  1855,  relating  to  conveyances,  mak- 
ing radical  changes  in  its  substance,  and  content.  Laws  1859,  c.  30. 
The  subject-matter  of  the  section  quoted  was  entirely  omitted,  and  noth- 
ing whatever  was  substituted  for  it,  either  in  the  revision  or  in  any  oth- 
er statute.  The  result  was  that  section  5  was  repealed  by  implication ; 
and,  since  the  Legislature  had  its  attention  specially  directed  to  estates 
tail  by  that  section  the  purpose  evidently  was  to  restore  the  common 
law  on  the  subject.  This  intention  is  made  more  apparent  by  the  pas- 
sage of  the  following  act  at  the  same  session :  "The  common  law  of 
England  and  all  statutes  and  acts  of  Parliament  in  aid  thereof,  made 
prior  to  the  fourth  year  of  James  the  First,  and  which  are  of  a  general 
nature,  not  local  to  that  kingdom  and  not  repugnant  to  or  inconsistent 
with  the  Constitution  of  the  United  States  and  the  act  entitled  'An  act 
to  organize  the  territory  of  Nebraska  and  Kansas,'  or  any  statute  law 
which  may  from  time  to  time  be  made  or  passed  by  this  or  any  subse- 
quent Legislative  Assembly  of  the  Territory  of  Kansas,  shall  be  the 
rule  of  action  and  decision  in  this  territory,  any  law,  custom  or  usage 
to  the  contrary  notwithstanding."    Laws  1859,  c.  121,  §  1. 

The  Constitution,  adopted  in  July,  1859,  under  which  the  state  was 


44  ESTATES    IN    FEE    TAIL 

admitted  to  the  Union  on  January  31,  1861,  contains  nothing  which 
bears  upon  the  subject,  either  directly  or  remotely;  and  the  Legisla- 
ture has  not  since  dealt  with  it.  Nothing  is  to  be  found  in  the  acts  re- 
lating to  conveyances,  descents,  and  distributions,  or  wills,  incompati- 
ble with  the  existence  of  such  estates ;  and  in  their  unfettered  form 
such  estates  are  not  out  of  harmony  with  the  conditions  and  wants  of 
the  people  of  Kansas.  On  the  other  hand,  they  exactly  meet  the  re- 
quirements of  testators  in  the  situation  of  John  Ewing.  He  desired  to 
give  his  daughter  an  estate  for  life,  in  order  to  secure  to  her  a  home 
and  some  measure  of  comfort  and  welfare  while  she  lived.  After  that 
he  desired  that  the  remainder  should  go  to  her  children  in  fee.  But  he 
did  not  desire  that  his  son-in-law  should  take  the  whole  gift  should  she 
die  childless,  to  be  enjoyed  by  him  and,  perhaps,  a  strange  second 
wife  and  their  children.  The  court  knows  of  no  reason  in  law,  morals, 
or  public  policy  why  these  sentiments  should  not  be  respected,  and  they 
were  clearly  and  fully  expressed  by  the  language  of  the  will,  interpret- 
ed by  the  common  law.  The  overweening  propensity  to  perpetuate 
family  name  and  family  property  which  made  estates  tail  so  obnoxious 
in  the  middle  ages  is  fairly  curbed  by. the  right  of  a  tenant  in  tail  to 
convert  his  tenancy  into  a  fee  simple,  and  is  not  a  menace  to  the  gen- 
eral welfare  of  the  people  of  this  state;  and  it  will  be  remembered 
that  this  right  became  one  of  the  characteristics  of  the  estate. 

Fines  and  recoveries,  however,  are  not  adapted  to  any  of  our  needs, 
are  inconsistent  with  the  Code  of  Civil  Procedure,  and  consequently 
cannot  be  resorted  to,  as  portions  of  the  common  law,  in  aid  of  the 
general  statutes  of  this  state.  Gen.  Stat.  1909,  §  9850.  The  effect  of 
these  indirect,  fictitious,  and  operose  proceedings  was  merely  that  of  a 
deed  of  record,  and  the  same  end  may  now  be  accomplished  by  an  ordi- 
nary conveyance.  The  fiction  and  the  form  alone  are  obsolete.  The 
substance  of  the  proceeding  (a  conveyance)  and  the  essential  character 
of  the  estate  tail  (the  right  to  convert  the  estate  into  a  fee  simple  by  a 
conveyance)  are  preserved.  If,  therefore,  Mary  A.  Nesbitt  had  chosen, 
in  her  lifetime,  to  make  a  conveyance  of  the  land  devised  to  her,  she 
would  thereby  have  barred  herself,  her  issue,  born  and  unborn,  and 
her  father's  reversion. 

While  the  mere  possibility  of  a  reverter  such  as  attended  conditional 
gifts  under  the  ancient  common  law  is  not  a  subject  of  disposal  by  will, 
reversions  in  fee  under  the  statute  de  donis  may  be  devised.  The  re- 
sult is  that  Mary  A.  Nesbitt  was  given  by  the  will  an  estate  tail  in  the 
land  in  controversy.  She  also  took,  by  virtue  of  the  residuary  clause 
of  the  will,  one-fifth  of  the  reversion  in  fee  expectant  upon  her  death 
without  issue.  Upon  her  death  this  interest  passed  to  her  husband,  tlie 
defendant. 

The  judgment  of  the  district  court  is  affirmed.  All  the  Justices  con- 
curring. 


CLASSIFICATION   OF   ESTATES   TAIL  45 

II.  Classification  of  Estates  Tail* 
1.  Estates  in  Tail,  Special 


WEART  V.  CRUSER. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1887.    49  N.  J.  Law,  475, 

13  Atl.  36.) 

Error  to  supreme  court. 

The  action  was  in  ejectment,  and  broifght  to  recover  an  equal  one- 
eighth  part  of  a  farm  in  the  county  of  Somerset.  The  cause  was  tried 
in  the  Somerset  circuit  without  a  jury.  Judgment  was  rendered  in 
favor  of  the  plaintiff,  and  the  following  reasons  were  assigned  for 
the  judgment  by  Magie,  J.: 

"The  cause  is  of  such  importance  as  to  justify  and  demand  a  state- 
ment of  the  views  of  the  court  on  the  legal  question  presented.  That 
question  respects  the  title  which  Matthias  Van  Dike  Cruser,  the  father 
of  the  plaintiff,  took  under  the  will  of  Frederick  Cruser,  deceased. 
If  the  title  was  or  became  a  fee-simple,  then  the  defendant  must  suc- 
ceed. If  the  title,  under  the  statute  of  13  Edw.  I.,  (called  the  'Stat- 
ute of  Entails,')  was  a  fee-tail,  then  the  plaintiff  has  a  right  to  re- 
cover. The  solution  of  the  question  depends  on  the  construction  of 
the  following  clause  of  the  will  of  Frederick  Cruser,  deceased,  viz. : 
'I  give  and  devise  unto  my  son,  Matthias  Van  Dike  Cruser,  his  heirs 
and  assigns  by  his  present  wife,  Sally  Ann,  forever,  the  farm,'  etc. 

"The  argument  of  defendant's  counsel  was  mainly  directed  in  the 
line  of  two  opinions  given  by  eminent  counsel  respecting  the  true  con- 
struction of  this  clause.  Both  these  opinions  have  been  before  me, 
and  have  received,  as  they  deserve,  most  careful  consideration.  The 
opinion  of  Mr.  Bradley,  now  associate  justice  of  the  supreme  court  of 
the  United  States,  was  given  in  1866.  He  first  takes  the  position  that 
the  clause  in  question  contains  no  words  of  procreation,  nor  any  equiv- 
alent words,  and  that  its  words  do  not  necessarily  imply  the  descend- 
ants of  the  devisee,  for,  he  says,  'the  heirs  of  M.  V.  D.  C.  by  his  pres- 
ent wife,  Sally  Ann,  must  be  descended  from  her,  but  need  not  nec- 
essarily be  descended  from  him;  for  if  he  should  die  first,  and  his 
wife  should  marry  his  next  cousin,  and  have  issue,  this  issue  might  be- 
come the  collateral  heirs  of  M.'  He  then  likens  the  estate  devised  to 
a  qualified  fee,  which  he  described  as  being,  in  the  language  of  Mr. 
Preston,  an  interest  given  in  its  first  limitation  to  a  man,  and  to  cer- 
tain of  his  heirs,  and  not  extended  to  all  of  them  generally,  nor  con- 
fined to  the  issue  of  his  body.  He  then  concludes  that  the  limitation 
of  this  clause,  restricting  the  descent  to  such  of  the  heirs  of  M.  V. 

2  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  33. 


46  ESTATES    IN    FEE    TAIL 

D.  C.  as  should  be  descendants  of  Sally  Ann,  his  wife,  creates  a  source 
of  descent  different  from  that  prescribed  by  our  laws,  and  so  is  repug- 
nant to  the  estate  granted  to  M.  V.  D.  C,  and  void.  This  conclusion 
seems  to  indicate  that  the  estate  which  M.  V.  D.  C.  took  was  a  fee- 
simple.  The  foundation  of  this  conclusion  is  evidently  the  alleged 
lack  of  words  of  procreation,  or  words  of  equivalent  meaning.  His 
contention  rs  that  the  words,  'heirs  of  M.  V.  D.  C.  by  his  present  wife, 
Sally  Ann,'  do  not  necessarily  import  the  issue  of  M.  V.  D.  C.  If  this 
premise  is  incorrect,  the  conclusion  must  be  rejected.  I  feel  constrain- 
ed to  regard  the  words  as  entirely  equivalent  to  'heirs  of  the  body 
of  M.  V.  D.  C.  by  his  present  wife,  Sally  Ann.'  This  instrument  to  be 
construed  is  a  will.  What  we  are  to  ascertain  is  the  intent  of  the 
testator.  No  one  who  reads  the  clause  will  doubt  that  his  intent  was 
to  limit  the  estate  to  the  issue  of  M.  V.  D.  C.  by  Sally  Ann.  The 
books  are  full  of  illustrations  of  precisely  similar  inferences  of  in- 
tent, drawn  from  the  use  of  similar  language.  Thus,  in  Den  v.  Cox, 
9  N.  J.  Law,  10,  the  phrase,  'his  lawfully  begotten  heir,'  was  held  to 
create  an  estate  tail,  and  to  be  equivalent  to  'lawfully  begotten  heir  of 
his  body.'  Yet  the  words  did  not  necessarily  import  the  issue  of  the 
devisee  and  would  have  been  entirely  satisfied  by  a  descent  to  any 
heir  lawfully  begotten,  though  not  of  his  issue.  The  words  'heirs 
male,'  in  a  devise,  have  always  been  held  to  import  heirs  of  the  body ; 
and  yet  they  would  be  entirely  satisfied  by  any  male  heirs,  lineal  or  col- 
lateral. Den  v.  Fogg,  3  N.  J.  Law,  819.  These  illustrations  might  be 
indefinitely  multiplied.  The  present  case  is  not  without  precedent, 
and  the  view  I  have  taken  is  not  without  the  support  of  authority.  In 
Vernon  v.  Wright,  7  H.  L.  Cas.  49,  a  devise  to  'the  right  heirs  of 
my  grandfather  by  Mary,  his  second  wife,  forever,'  was  held  to  cre- 
ate an  estate  tail.  The  words  were  said  to  comprehend  words  of  pro- 
creation, and  to  be  equivalent  to  heirs  of  the  body  of  the  grandfather, 
begotten  on  the  body  of  the  wife  named.  In  Somers  v.  Pierson,  16 
N.  J,  Law,  181,  a  devise  to  J.  S.,  and  'to  his  heirs  by  his  present 
wife,  Anne,'  was  held  to  create  an  estate  tail.  The  opinion  was  by 
Ford,  J.,  and  concurred  in  by  Hornblower,  C.  J.  The  judgment  ol 
the  supreme  court  was  afterwards  reversed  by  the  court  of  errors ; 
but  no  opinion  seems  to  have  been  delivered,  and  the  reversal  was  in 
1841.  It  is  not  necessary  to  infer  that  Uie  reversal  went  on  the  ground 
that  the  construction  given  to  this  clause  by  the  supreme  court  was  er- 
roneous. There  was  a  subsequent  clause  in  the  will  then  under  con- 
sideration which  provided  that  the  lands  devised  were,  after  the  death 
of  the  widow,  to  whom  they  were  given  for  life,  to  'cede  to  J.  S.,  his 
heirs  and  assigns,  to  all  intents  and  purposes.'  It  was  contended  in  the 
supreme  court  that  this  clause  controlled  and  passed  a  fee-simple. 
We  may  fairly  presume  the  same  contention  was  made  in  the  court 
of  errors,  and  the  reversal  was  probably  on  that  ground.  The  case 
therefore,   is  not  without  weight.     Upon  these  grounds,   I  think  the 


CLASSIFICATION    OF    ESTATES   TAIL  47 

words  of  this  clause  are  to  be  taken  as  including  the  idea  of  procre- 
ation, and  as  meaning  'heirs  of  the  body'  of  M.  V.  D.  C.  by  his  wife, 
Sally  Ann. 

"The  other  opinion  was  by  A.  O.  Zabriskie,  afterwards  chancellor. 
His  conclusion  is  that  M.  V.  D.  C.  took  an  estate  in  fee-simple.  This 
conclusion  is  put  upon  the  force  of  the  word  'assigns,'  which,  hQ  in- 
sists, indicates  a  clear  intention  to  give  to  M.  V.  D.  C.  a  power  to 
sell.  The  remaining  part  of  the  devise,  he  thinks,  would  have  its  due 
effect  if  held  to  mean  that,  if  M.  V.  D.  C.  should  die  without  having 
sold  the  farm,  his  heirs  by  his  wife,  Sally  Ann,  would  take  as  pur- 
chasers. He  admits  that,  unless  that  construction  be  given,  the  clause 
will  come  literally  within  the  eleventh  section  of  the  descent  act,  which 
provides  for  the  disposition  of  estates  which  would  be  estates  tail  un- 
der the  statute  of  entails.  But  he  suggests  that  an  estate  tail  special 
is  not  within  that  section,  because,  as  he  well  observes,  a  literal  appli- 
cation of  the  sections  to  such  estates  will  invariably  thwart  the  will 
of  the  testator.  This  suggestion  need  not  be  considered,  because,  in 
Zabriskie  v.  Wood,  23  N.  J.  Bq.  541,  tlie  court  of  errors  expressly 
decided  that  the  eleventh  section  did  apply  to  all  estates  tail,  whether 
general  or  special.  The  force  attributed  by  Mr.  Zabriskie  to  the  word 
'assigns,'  in  this  clause,  is,  in  my  judgment,  excessive  and  inappropri- 
ate. In  Den  v.  Wortendyke,  '7  N.  J.  Law,  363,  the  question  was 
whether  an  estate  in  fee  or  in  tail  passed  under  a  clause  of  a  will, 
and  the  same  contention  was  made.  Chief  Justice  Kinsey  uses  the 
following  language:  'In  the  outset,  I  will  remark  that  little  or  no 
importance  is  to  be  attached  to  the  use  of  the  word  "assigns,"  in  this 
case ;  a  circumstance  upon  which  a  considerable  part  of  the  argument 
was  founded.  I  am  not  aware  of  a  single  case  wherein,  a  certain  in- 
terest having  been  given  in  a  will,  this  word  has  been  held  to  enlarge, 
or  in  any  manner  to  affect,  this  interest.  Every  interest  recognized 
by  the  law,  unless  under  particular  circumstances,  is  the  object  of 
an  assignment.  It  belongs  essentially  to  every  species  of  interest  or 
property ;  and  the  introduction  of  the  term  is,  therefore,  in  every  case, 
superfluous  and  inoperative  in  a  conveyance  of  property.  The  first 
section  of  Littleton  shows  that  the  word  has  no  enlarging  power  in  ^ 
a  conveyance,  and  Coke  *  *  *  shows  that  it  is  the  same  in  a  case 
of  a  will.  The  argument,  therefore,  resting  on  the  basis,  is  entitled 
to  no-  consideration.'  In  the  section  referred  to  by  the  learned  chief 
justice,  Littleton  declares  that  a  purchase  by  the  words,  'to  have  and 
to  hold  to  him  and  his  assigns  forever,'  would  only  pass  an  estate  for 
life.  Coke,  in  his  Commentary,  says  that  a  devise  'to  him  and  to 
his  assigns  forever'  will  pass  a  fee-simple  by  the  intent  of  the  devisor. 
But  it  is  plain  that  this  intent  is  drawn,  not  from  the  use  of  the 
word  'assigns,'  but  the  use  of  the  word  'forever;'  for  he  adds  that 
under  a  devise  'to  one  and  his  assigns,'  without  saying  'forever,'  the 
devisee  hath  but  an  estate  for  life.     Co.  Litt.  96.     In  Lutkins  v.  Za- 


48  ESTATES    IN    FEE    TAIL 

briskie,  21  N.  J.  Law,  337,  on  a  devise  to  A.,  and  to  her  heirs  lawfully 
from  her  body  begotten,  and  assigns,  forever,  it  was  contended  that 
A.  took  a  fee-simple,  and,  among  other  reasons,  because  of  an  inten- 
tion to  be  inferred  from  the  use  of  the  word  'assigns.'  Chief  Justice 
Hornblower  held  that  the  word  'assigns'  had  never  been  considered 
sufficient  to  control  previous  words  of  limitation.  Upon  these  cases  it 
seems  to  me  the  word  relied  on  has  never  been  applied  to  enlarge  an 
estate  under  the  circumstances  such  as  appear  in  this  case.  The  force 
attributed  to  the  word  is  inappropriate,  because,  in  any  event,  the 
estate  taken  by  M.  V.  D.  C.  was  vendible  and  assignable.  Under  such 
circumstances,  there  is  no  inference  to  be  drawn  except  of  an  intent 
to  pass  a  vendible  and  assignable  estate. 

"It  was  contended  on  the  argument  that  the  word  'forever,'  in  this 
clause,  tended  to  the  same  construction  reached  by  Mr.  Zabriskie. 
But,  although  this  word  often  operates  to  indicate  an  intent  to  cre- 
ate a  fee-simple,  yet  it  will  not  operate  to  create  or  impede  the  crea- 
tion of  an  estate  tail.  Such  was  the  view  of  Chief  Justice  Ewing  in 
Den  V.  Cox,  9  N.  J.  Law,  10,  and  the  cases  there  cited,  and  many 
others  sustain  that  view.  In  Vernon  v.  Wright,  ubi  supra,  Crowder, 
J.,  expresses  the  same  view  and  says  the  word  would  not  enlarge  the 
limitation  of  the  estate  tail,  but  only  import  its  continued  duration. 
The  result  is  that,  in  my  judgment,  the  plain  intent  of  testator  was  to 
create  an  estate  which,  under  the  statute  of  13  Edw.  I.,  commonly 
called  the  'Statute  of  Entails,'  would  have  been  an  estate  in  special 
tail.  Upon  the  authority  of  Zabriskie  v.  Wood,  ubi  supra,  that  estate 
fell  within  the  provisions  of  section  11  of  the  descent  act,  and  became 
an  estate  for  life  in  M.  V.  D.  C,  the  devisee,  with  remainder  to  his 
children  in  fee-simple.  See  also  Redstrake  v.  Townsend,  39  N.  J. 
Law,  372. 

"It  was  suggested  on  the  hearing  that  there  might  be  a  question, 
under  section  11,  as  to  the  amount  of  estate  to  which  plaintiff  would 
be  entitled.  He  is  one  of  seven  children  of  M.  V.  D.  C.  by  his  wife, 
Sally  Ann.  M.  V.  D.  C.  had  a  child  by  a  previous  wife.  If  the  last- 
named  child  obtains  an  interest  under  section  11,  it  is  plain  that  the 
intention  of  the  testator  is  not  regarded.  But  the  question  is  not 
before  me,  because  plaintiff  only  claims  one-eighth  of  the  land.  If 
before  me,  the  case  of  Zabriskie  v.  Wood,  ubi  supra,  settles  it,  for  in 
that  case  the  statute  was  so  construed  as  to  cast  the  devised  estate 
upon  a  child  to  whom  it  was  the  evident  intent  of  the  testator  that 
the  estate  should  not  pass.  I  am  therefore  constrained  to  find  for  the 
plaintiff,  and  that  he  is  entitled  to  judgment  for  the  lands  claimed, 
etc.,  and  his  costs  of  suit,"  etc. 

A  writ  of  error  was  brought  to  remove  the  judgment  and  proceed- 
ings to  this  court. 

Per  Curiam.  The  judgment  in  this  case  should  be  affirmed,  for  the 
reasons  given  by  the  court  below.     Unanimously  af6rmed. 


ESTATES   TAIL   IN   THE    UNITED   STATES  4:9 


III.  The  Barring  of  Estates  Tail » 


See  Ewing  v.  Nesbitt,  ante,  p.  39. 


IV.  Estates  Tail  in  the  United  States* 
1.  Ei^PEcT  OF  Statutes 


.    See  Weart  v.  Cruser,  ante,  p.  45. 

«  For  discussion  of  principles  *  see  Burdick,  Real  Prop.  §  36. 
*  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  38. 

Bubd.Cas.Real  Pbop. 


50  ESTATES   FOE   LIFE 


ESTATES  FOR  LIFE 
I.  Life  Estates  Defined  ^ 


Set  Cummings  v.  Cummings,  post,  p.  75. 


II.  Rights  and  Liabilities  of  Life  Tenant  * 


MISSO\fRI  CENTRAL  BUILDING  &  LOAN  ASS'N  v.  EVELER. 

(Supreme  Court  of  Missouri,  Division  No.  1,  1911.     237  Mo.  679,  141  S.  W. 

877,  Ann.  Cas.  1913A,  486.) 

Appeal  from  Circuit  Court,  Cole  County ;  W.  H.  Martin,  Judge. 

Action  by  the  Missouri  Central  Building  &  Loan  Association  against 
John  B.  E/eler  and  others,  minors,  and  Nellie  A.  Eveler,  an  adult. 
From  a  judgment  for  defendants,  plaintiff  appeals.    Affirmed. 

Gravks,  P.  J.  Cast  upon  demurrer  below,  the  plaintiff  stood  upon 
its  petition,  and  after  such  adverse  judgment  upon  the  demurrer  brings 
the  case  here  by  appeal.  Learned  counsel  for  the  plaintiff  has  made 
a  very  concise  statement  of  the  case,  which  statement  is  adopted  in  the 
brief  by  learned  counsel  for  the  defendants.  We  shall  likewise  adopt 
such  statement.    In  words,  it  is  as  follows : 

"The  petition  alleges,  and  the  demurrer  admits,  that  in  the  year 
1901,  Herman  Eveler,  being  in  possession  of  a  part  of  certain  inlots 
in  Jeft'erson  City,  Missouri,  described  in  the  petition,  applied  to  plain- 
tiff for  a  loan  of  $800  on  said  property,  representing  himself  to  be  the 
owner  thereof  in  fee  simple;  that  in  the  year  1903,  under  the  same 
representations,  he  applied  to  plaintiff  for  a  further  loan  of  $600  on 
said  property,  and  in  the  year  1904,  under  like  representations,  he 
applied  to  plaintiff  for  a  further  loan  of  $400  on  said  property;  that 
plaintiff,  believing  said  representations  of  ownership  to  be  true,  and 
believing  that  the  said  Herman  Eveler  was  the  owner,  in  fee  simple, 
of  the  property,  granted  the  loans  thus  applied  for,  amounting  in  all 
to  $1,800,  and  took  the  said  Eveler's  notes  for  said  amounts  of  $800, 
$600,  and  $400,  said  notes  being  secured  by  deeds  of  trust  on  said 
property,  executed  by  the  said  Herman  Eveler  and  his  wife,  de- 
fendant Nellie  A.  Eveler;  that  all  of  the  money  so  loaned  by  plaintiff 
to  the  said  Herman  Eveler  was  used  by  him  in  making  lasting  and 
permanent  improvements  on  said  property,  which  resulted  in  greatly 
increasing  the  rental  and  market  value  thereof ;    that  the  improve- 

1  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  40. 

2  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  44. 


RIGHTS   AND   LIABILITIES   OF   LIFE   TENANT  51 

ments  so  made  consisted  in  the  building  of  another  story  on  the  two- 
room  brick  house  theretofore  standing  on  the  land,  and  in  erecting 
on  the  same  land  a  seven-room,  frame,  two-story  building ;  the  former 
being  occupied  by  the  defendants  as  a  home,  and  the  latter  being 
rented  by  defendants  at  $29  per  month.  The  petition  further  alleges 
that  Herman  Eveler  died  in  May,  1907,  leaving  as  his  only  children 
the  minor  defendants,  and  his  widow,  defendant  Nellie  A.  Eveler, 
and  that  since  his  death  defendants  have  enjoyed  the  rents  and  profits 
of  all  the  buildings  erected  with  the  money  so  borrowed  from  plain- 
tiff as  aforesaid ;  that  no  payments  have  been  made  on  said  loans  since 
the  death  of  the  said  Eveler,  and  that  there  is  now  due  plaintiff  on  said 
loans  the  sum  of  about  $1,380.70;  that  itjnow  appears  that  the  said 
Eveler's  representations  of  fee-simple  title  in  himself  were  untrue ; 
that  by  the  terms  of  his  father's  will,  under  which  he  was  in  posses- 
sion and  claimed  said  property,  the  said  Herman  Eveler  never  had  the 
fee-simple  title  to  said  property,  but  had  only  a  life  estate  therein,  and 
that  on  his  death  the  fee-simple  title  to  said  property  vested  in  Eve- 
ler's children,  the  minor  defendants  herein.  The  petition  further 
states  that  defendants  refuse  to  make  any  further  payments  upon  the 
loans;  that  plaintiff  is  remediless  at  law,  and  prays  the  court,  in 
the  exercise  of  its  chancery  powers,  to  ascertain  the  amount  yet  due 
plaintiff,  to  declare  such  amount  a  lien  upon  the  improvements,  and 
to  adjudge  that  the  frame  building  now  standing  upon  the  minor  de- 
fendants' land  be  subjected  to  the  payment  of  plaintiff's  debt  in  such 
way  as  to  the  court  may  seem  best;  and  for  such  other  proper  and 
equitable  relief  as  to  the  court  may  seem  proper.  Defendant  Nellie 
A.  Eveler  demurred  to  the  petition,  on  the  ground  that  she  was  not 
a  necessary  party  defendant,  and  the  minor  defendants  demurred, 
on  the  ground  that  the  petition  did  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action.  The  trial  court  sustained  the  demurrers,  and, 
on  plaintiff's  declining  to  plead  further,  rendered  judgment  for  de- 
fendants, whereupon  plaintiff  duly  appealed  to  this  court." 

The  facts  disclosed  by  this  record  show  a  hard  case  for  the  plain- 
tiff, but  has  it  any  redress  in  a  court  of  equity  ?  We  think  not.  The 
good  faith  of  plaintiff  in  loaning  this  money  may  be  conceded,  and  by 
the  demurrer  is  conceded,  yet  that  does  not  avail  the  plaintiff  in  a 
case  environed  as  is  this  case.  With  the  money  borrowed,  the  de- 
ceased life  tenant  made  valuable  improvements  upon  the  land's,  but 
under  the  facts  this  cannot  avail  as  against  these  remaindermen.  The 
father,  the  life  tenant,  could  not  by  trust  deed  incumber  the  estate  of 
these  minors.  His  conveyance  conveyed  no  more  than  the  estate 
which  he  held,  i.  e.,  the  life  estate.  This  is  the  legal  status,  and,  in  our 
judgment,  equity  cannot  relieve  the  legal  situation.  If  life  tenants 
could  borrow  money,  whether  upon  deeds  of  trust  or  otherwise,  with 
which  to  improve  the  estate  of  remaindermen,  and  the  parties  loaning 
the  money  could  show  that  it  went  into  actual  improvements,  and  for 


52  ESTATES   FOR  LIFE 

that  reason  be  adjudged  a  lien  upon  the  property  or  any  part  thereof, 
estates  in  remainder  would  certainly  be  left  in  a  precarious  situation. 
Remaindermen  would  be  at  the  mercy  of  the  life  tenant.  Such  would 
be  a  dangerous  precedent,  and  one  which  we  do  not  feel  called  upon  to 
set. 

When  the  plaintiff  loaned  these  sums  of  money  to  the  life  tenant, 
it  did  so  with  the  constructive  notice  imparted  by  the  will  of  the  life 
tenant's  father.  That  the  title  was  defective  could  have  been  ascer- 
tained and  this  lawsuit  averted  is  evident.  The  situation  is  harsh,  but 
was  not  made  by  these  defendants.  The  widow  of  the  life  tenant  has 
no  interest  in  the  controversy,  and  as  to  her  the  demurrer  was  cer- 
tainly well  taken. 

Going  now  to  the  remainderman,  we  take  it  as  well  settled  that  a 
life  tenant  cannot  charge  the  corpus  of  the  estate  with  improvements. 
What  he  himself  cannot  do  cannot  be  done  by  those  from  whom  he 
borrows  money  for  that  purpose. 

In  a  recent  Kentucky  case  (Frederick  v.  Frederick's  Adni'r,  102 
S.  W.  859,  31  Ky.  Law  Rep.,  loc.  cit.  584,  13  L.  R.  A.  [N.  S.]  514), 
it  is  said:  "It  is  a  familiar  rule  that  the  life  tenant  cannot  charge 
the  corpus  of  the  estate  with  improvements,  and  that  he  is  not  entitled 
to  compensation  for  the  enhancement  of  the  property  by  reason  of  his 
improvements.  Henry  v.  Brown,  99  Ky.  13,  34  S.  W.  710.  We  do 
not  see  that  there  is  anything  in  this  case  to  take  it  out  of  the  rule. 
If  the  improvements  had  been  made  by  Mrs.  Frederick,  the  life  tenant, 
they  would  not  be  a  charge  upon  the  estate.  They  are  certainly  no 
more  a  charge  upon  the  estate  when  made  by  her  husband.  *  *  * 
It  is  a  sound  rule  of  public  policy  which  denies  the  life  tenant  the 
power  to  charge  the  estate  for  his  improvements,  although  they  may 
enhance  the  value  of  the  property." 

The  above  case  is  also  reported  in  13  L.  R.  A.  (N.  S.)  at  page  514, 
where  it  is  made  the  subject  of  a  very  lengthy  note,  in  which  are 
collated  numerous  authorities.  The  learned  annotator  thus  announces 
the  general  rules :  "It  is  the  general  rule  that  a  life  tenant  has  no  right 
to  recover  from  the  remainderman  for  improvements  made  during 
the  continuance  of  the  life  estate."  "And  it  is  also  the  well-establish- 
ed law  that  no  charge  upon  the  lands  or  the  inheritance  can  be  made 
for  such  improvements."  "The  court,  in  Caldwell  v.  Jacob,  supra 
[22  S.  W.  436,  27  S.  W.  86,  16  Ky.  Law  Rep.  21],  gives  two  reasons 
for  this  rule:  First,  preventing  the  life  tenant  from  consuming  the  in- 
terest of  the  remanderman  by  making  improvements  that  the  re- 
maindcnnan  cannot  pay  for,  or  that  he  does  not  desire;  second,  im- 
provements are  made  for  the  immediate  benefit  of  the  life  estate,  and 
usually  without  reference  to  the  wishes  of  the  remainderman." 

In  16  Cyc.  p.  631,  the  rule  is  thus  stated:  "If  the  life  tenant  himself 
makes  permanent  improvements,  it  will  be  presumed  that  they  were 
for  his  own  benefit,  and  he  cannot  recover  anything  therefor  from  the 


RIGHTS    AND   LIABILITIES    OF   LIFE    TENANT  53 

remainderman  or  reversioner.  Exceptions  to  this  rule  have  been  made 
in  the  case  of  a  life  tenant  who  completes  a  dwelling  house  begun  by 
the  donor  of  the  estate,  or  who  makes  improvements  upon  mining 
property  to  prevent  its  forfeiture.  A  life  tenant  who  makes  improve- 
ments, believing  himself  to  be  the  owner  in  fee,  is  not  entitled  to  the 
benefit  of  the  betterment  or  occupying  claimant  laws." 

There  are  exceptions  to  these  general  rules,  as  will  be  disclosed  by 
the  collation  of  cases  under  the  Frederick  Case,  supra,  in  13  L.  R.  A. 
(N.  S.)  p.  514  et  seq.,  but  the  facts  of  this  case  do  not  bring  it  within 
the  exceptions  found  in  the  cases  there  cited.  In  the  case  at  bar,  the 
remaindermen  were  all  infants.  They  could  ~not  assent  to  the  con- 
tract made  by  their  father,  the  life  tenant,  and  they  are  in  no  way  es- 
topped by  their  own  conduct. 

It  is  also  the  general  rule  that  one  holding  under  the  life  tenant  is 
entitled  to  no  more  consideration  than  the  life  tenant.  Vide  authori- 
ties collated  in  note  to  the  Frederick  Case,  supra,  13  L.  R.  A.  (N.  S.) 
loc.  cit.  516.  Among  the  cases  there  cited  is  the  case  of  Schorr  v. 
Carter,  120  Mo.  409,  25  S.  W.  538.  In  the  Schorr  Case,  the  action 
was  one  in  ejectment  by  a  remainderman.  Defendants  had  possession 
and  claimed  title  through  a  conveyance  from  the  life  tenant.  It  was 
urged  that  defendants  were  at  least  entitled  to  recover  for  repairs 
made  to  the  property,  and  have  such  offset  against  the  damages  for  the 
unlawful  holding.  This  court  said :  "Defendants  were  not  entitled  to 
a  reduction  of  damages  for  outlays  expended  in  the  preservation  of 
the  property,  and  the  court  committed  no  error  in  excluding  all  evi- 
dence with  respect  thereto." 

With  the  general  trend  of  the  authorities  as  we  find  them,  we  are 
unwilling  to  establish  a  precedent  in  this  state,  by  which  the  interests 
of  minor  remaindermen  may  be  frittered  away  by  a  life  tenant.  Plain- 
tiff, by  the  exercise  of  that  care  which  is  required  of  one  taking  a 
conveyance  of  real  estate,  could  have  discovered  the  exact  status  of 
tlie  title  in  this  property.  Defendants  did  nothing  to  induce  action 
upon  part  of  plaintiff.  They  were  minors,  and  could  do  nothing  which 
would  bind  them. 

The  judgment  of  the  trial  court  is  right,  and  is  therefore  affirmed. 
All  concur.^ 

3  See,  also,  Higgins  Fuel  &  Oil  Co.  v.  Snow,  ante,  10.  The  husband  of  a 
life  tenant,  who  makes  improvements  on  ^he  estate,  cannot  recover  from  the 
remainderman.  Creutz  v.  Heil,  89  Ky.  429,  12  S.  W.  926  (1890).  In  Broyles 
V.  Waddel,  11  Heisk.  (Tenn.)  32  (1872),  it  is  held  that,  where  the  tenant  for 
life  is  also  a  tenant  in  common  of  the  remainder,  he  will  be  allowed,  on  parti- 
tion with  his  cotenants,  compensation  for  improvements  made  during  the  con- 
tinuance of  the  life  estate.  And  see  Gambril  v.  Gambril,  3  Md.  Ch.  259  (1853), 
where  a  life  tenant  who  had  made  permanent  improvements  was  allowed  to 
recover  the  value  of  such  improvements  out  of  the  proceeds  of  the  sale  of 
the  property,  the  sale  beius  under  order  of  the  court.  In  Arkansas,  a  statute 
permits  a  life  tenant  to  recover  for  improvements  made  under  the  belief  that 
he  was  the  owner  in  fee.  See  Bloom  v.  Strauss,  70  Ark.  483,  69  S.  W.  548 
(1902). 


54  LIFE    ESTATES    ARISING   FROM   MARRIAGE 


LIFE  ESTATES  ARISING  FROM  MARRIAGE 
I.  Estate  During  Coverture  ^ 


ROSE  V.  ROSE.  • 

(Court  of  Appeals  of  Kentucky,  1898.     104  Ky.  48,  46  S.  W.  524,  41  Tv.  R.  A. 

353,  84  Am.  St.  Rep.  430.) 

Appeal  from  circuit  court,  Logan  county. 

Action  by  Billie  Rose,  by  next  friend,  against  J.  A.  Rose,  and  others, 
to  recover  the  possession  of  land.  Judgment  for  defendants,  and  plain- 
tiff appeals.    Affirmed. 

PaynTEr,  J.  It  appears  from  the  petition,  to  which  the  court  sus- 
tained a  demurrer,  that  the  appellant  is  the  wife  of  appellee  J.  A.  Rose  ; 
that  they  were  married  in  the  year  1890;  that  a  separation  has  taken 
place,  which  is  permanent ;  that  they  will  never  live  together  as  hus- 
band and  wife.  It  also  appears  from  the  petition  that  after  the  mar- 
riage took  place,  and  before  the  passage  of  the  act  of  1894  (sections 
2127,  2128,  Ky.  St.),  defining  the  rights  of  married  women,  the  appel- 
lant by  gift  acquired  title  to  a  tract  of  land  containing  308  acres,  and 
by  purchase  another  tract  of  120  acres.  It  is  alleged  that  the  husband 
is  in  possession  of  this  land,  and  refuses  to  surrender  it  to  the  appel- 
lant. She  therefore  prays  that  the  possession  of  it  be  adjudged  to  her. 
The  question  involved  is  whether,  under  the  act  referred  to,  the  rights 
of  the  husband — as  they  existed  at  the  time  of  its  passage — to  the  use 
of  the  land  have  been  destroyed ;  that  is  to  say,  did  the  legislature  in- 
tend to  deprive  husbands  of  their  interests  in  the  lands  of  their  wives, 
or,  if  it  so  intended,  did  it  have  the  power  to  do  so? 

At  common  law  the  husband  became  the  owner  of  the  personal  prop- 
erty of  the  wife.  He  likewise  became  seised  in  an  estate  for  their  joint 
lives  of  her  freehold  lands  and  chattels  real.  He  could  sell  the  personal 
property  thus  acquired,  and  vest  the  vendee  with  a  title  thereto.  He 
could  sell  the  interest  which  he  acquired  in  the  real  estate,  and  vest  the 
purchaser  with  the  title  to  the  interest  which  became  vested  in  him  by 
operation  of  law.  2  Dembitz,  Land  Titles,  788;  2  Kent,  Comm.  130; 
2  Bl.  Comm.  126.  The  court  held  in  McClain  v.  Gregg,  2  A.  K.  Marsh. 
804,  that  marriage  gives  the  husband  an  estate  in  the  lands  of  his  wife, 
which  he  could  sell,  and  that  his  vendee  could  maintain  ejectment. 
That  opinion  was  before  an  act  of  the  legislature  reducing  the  interest 
of  the  husband  in  the  wife's  land.  A  divorce  restores  to  the  wife  the 
exclusive  right  to  her  land.  Hays  v.  Sanderson,  7  Bush,  489.  As  civil- 
ization advanced,  and  as  the  men  who  made  the  laws  began  to  recog- 

1  For  dlscusHion  of  principles,  see  Burdick,  Real  Prop.  §  47. 


ESTATE   DURING   COVERTURE  55 

nize  that  a  wife  should  not  be  compelled  to  surrender  practically  all  of 
her  estate  to  the  husband,  but  should  be  given  a  reasonable  protection 
in  the  enjoyment  of  her  property,  the  legislature  of  Kentucky  passed 
an  act  which  supplanted  the  common  law  with  reference  to  the  rights 
of  a  husband  in  his  wife's  real  estate.  It  is  section  1,  art.  2,  c.  52,  p. 
720,  Gen.  St.,  and  reads  as  follows :  "Marriage  shall  give  to  the  hus- 
band, during  the  life  of  the  wife,  no  estate  or  interest  in  her  real  estate, 
including  chattels  real,  owned  at  the  time,  or  acquired  by  her  after 
marriage,  except  the  use  thereof,  with  power  to  rent  the  real  estate  for 
not  more  than  three  years  at  a  time,  and  receive  the  rent.  If,  however, 
the  wife  die  during  the  term  for  which  her  land  is  rented,  the  rent 
shall  go  to  the  husband,  if  alive,  subject  to  her  debts,  contracted  as 
stated  in  the  next  section.  But  if  during  such  term  the  husband  die, 
the  rent  accruing  thereafter  shall  go  to  the  wife  or  her  representatives, 
subject  to  her  debts  as  aforesaid."  This  section  was  in  force  at  the 
time  the  parties  to  this  action  were  married,  and  at  the  time  the  wife 
acquired  the  land.  It  gives  the  husband  the  use  of  the  wife's  land,  with 
power  to  rent  it  for  not  more  than  three  years  at  a  time,  and  receive 
the  rent.  It  does  not  allow  this  rent  to  be  subjected  to  the  payment  of 
his  debts,  because  the  legislature  thought  it  wise  to  place  it  in  the  pow- 
er of  the  husband  to  appropriate  the  rents  for  the  benefit  of  his  wife 
and  children,  if  he  chose  to  do  so. 

In  obedience  to  the  requirements  of  the  statute,  this  court  has  repeat- 
edly held  that  the  rents  of  the  wife's  land  could  not  be  subjected  to  the 
payment  of  the  husband's  debts.  If  the  husband  cultivates  the  land 
himself,  then  the  products  of  the  land  have  been  adjudged  to  belong  to 
him.  The  court,  in  Moreland  v.  Myall,  14  Bush,  474,  held  that  corn 
standing  on  the  wife's  land  (her  general  estate)  is  subject  to  levy  and 
sale  under  execution  against  the  husband.  While  the  rent  of  the  wife's 
land  is  not  liable  for  the  husband's  debts,  yet,  as  between  the  husband 
and  wife,  the  rent  belongs  to  him.  Barnes  v.  Burbridge,  7  Ky.  Law 
Rep.  445.  While,  under  the  act  in  force  when  the  parties  married  and 
when  the  land  was  acquired,  the  husband's  interest  in  the  wife's  land 
was  not  so  great  as  at  common  law,  still  it  is  a  vested  right ;  and  the 
legislature  could  not  deprive  him  of  the  use  of  his  wife's  land,  and  the 
right  to  rent  it  for  three  years  at  a  time.  The  act  of  1894  declares  that 
marriage  shall  give  to  the  husband  no  interest  in  the  wife's  property, 
and  that  she  shall  hold  it  and  own  it  for  her  separate  and  exclusive  use, 
free  from  the  debts  and  control  of  her  husband.  The  act  is  not  retro- 
spective in  its  operation.  It  cannot  take  from  a  husband  the  rights 
which  existed  under  the  law  in  force  at  the  time  of  its  passage.  It  is 
said  by  Mr.  Cooley,  in  his  work  on  Constitutional  Limitations  (5th 
Ed.  p.  442) :  "At  the  common  law  the  husband,  immediately  on  the 
marriage  succeeded  to  certain  rights  in  the  real  and  personal  estate 
which  the  wife  then  possessed.  These  rights  became  vested  rights  at 
once,  and  any  subsequent  alteration  in  the  law  could  not  take  them 
away."    It  is  held  in  Railroad  Co.  v.  Harris,  9  Ind.  184,  68  Am.  Dec. 


56  LIFE    ESTATES   ARISING    FROM    MARRIAGE 

618,  that  a  husband's  estate  in  the  wife's  land  is  not  impaired  by  a  stat- 
ute declaring  it  separate  property.  Under  the  law  of  New  York,  a 
husband  had  a  certain  interest  in  his  wife's  property.  Subsequently  the 
legislature  passed  an  act  which,  in  effect,  declared  that  such  property 
should  no  longer  belong  to  the  husband,  but  should  become  the  proper- 
ty of  the  wife,  as  though  she  were  a  single  female.  The  court  held  that 
the  husband's  rights  could  not  be  impaired  by  the  act  of  the  legislature. 
Westervelt  v.  Gregg,  12  N.  Y.  202,  62  Am.  Dec.  160. 

It  was  held  in  Rose  v.  Sanderson,  38  111.  247,  that  a  legislative  enact- 
ment cannot  take  from  the  husband  a  vested  life  estate  in  the  wife's 
land,  and  give  it  to  her.  Bishop  on  the  Law  of  Married  Women  (vol- 
ume 2,  §  40),  after  stating  what  are  the  rights  of  the  husband  at  com- 
mon law  in  the  wife's  real  estate,  says :  "This  is  a  vested  estate  in  him  ; 
and,  within  the  doctrine  discussed  under  our  first  subtitle,  it  is  not 
competent  for  legislation,  without  his  consent,  to  take  it  from  him  and 
give  it  back  to  the  wife."  The  views  we  have  expressed  are  supported 
by  Jackson  v.  Jackson,  144  111.  274,  33  N.  E.  51,  36  Am.  St.  Rep.  427; 
Clark  V.  Clark,  20  Ohio  St.  135 ;  Wyatt  v.  Smith,  25  W.  Va.  813. 
Many  authorities  could  be  cited  in  support  of  these  views.  A  wife 
who  was  married  before  the  act  of  1894  took  effect  is  entitled  to  all 
the  rights  in  property  acquired  after  the  act  took  effect  which  it  pur- 
ports to  give  her.  Although  the  marriage  took  place  before  the  act 
took  effect,  the  husband  has  no  right  to  complain  that  the  legislature  has 
given  his  wife  the  control  of  such  property  as  she  acquired  after  the 
act  took  effect.  The  act  did  not  impair  any  vested  right  of  the  husband 
in  property  so  acquired.  His  right  was  expectant,  not  vested.  Mr. 
Cooley  in  his  work  on  Constitutional  Limitations  (page  443),  in  speak- 
ing in  regard  to  the  husband's  expectant  interest  in  the  after-acquired 
property  of  the  wife,  said:  "It  is  subject  to  any  changes  made  in  the 
law  before  his  right  becomes  vested  by  the  acquisition."  In  Allen  v. 
Hanks,  136  U.  S.  300,  10  Sup.  Ct.  961,  34  L.  Ed.  414,  it  was  held  com- 
petent for  a  state,  in  its  fundamental  law  or  by  statute,  to  provide  that 
all  property  thereafter  acquired  by  or  coming  to  a  married  woman  shall 
constitute  her  separate  estate,  not  subject  to  the  control  or  liable  for  the 
debts  of  the  husband.  Such  requirements  do  not  take  away  or  impair 
any  vested  rights  of  the  husband.  The  same  doctrine  was  announced 
in  Jackson  v.  Jackson.  It  is  hardly  necessary  to  observe  that,  if  Mrs. 
Rose  should  be  divorced  from  her  husband,  she  is  entitled  to  be  restor- 
ed to  the  possession  and  use  of  her  land  ;  or  should  she,  in  an  appropri- 
ate proceeding,  show  herself  entitled  to  alimony  or  equitable  settle- 
ment, the  products  of  her  land,  or  the  rents  thereof,  would  be  subject 
to  the  payment  of  it,  in  the  same  manner  and  to  the  same  extent  as  they 
would  be  if  the  land  belonged  to  the  husband.  This  is  upon  the  idea 
that  the  products  of  the  land,  or  the  rents  of  it,  belong  to  him. 

The  only  case  to  which  the  court's  attention  has  been  called  which 
militates  against  the  conclusion  we  have  reached,  as  to  the  incompe- 
tency of  the  legislature  to  take  from  a  husband  his  vested  rights,  is  the 


ESTATE   DURING   COVERTURE  57 

case  of  Rugh  v.  Ottenheimer,  6  Or.  231,  25  Am.  Rep.  513.  To  sustain 
its  conclusion  in  that  case,  the  court  cited  Maguire  v.  Maguire,  7  Dana, 
183.  A  similar  question  to  the  one  involved  in  this  case  was  not  before 
the  court  in  the  Maguire  Case ;  neither  did  the  court  express  an  opin- 
ion on  a  question  like  the  one  involved  in  this  case.  The  part  oif  the 
opinion  which  the  Oregon  court  relied  upon  to  sustain  its  conclusion 
was  dictum,  and  that  does  not  even  sustain  the  conclusion  of  the  court. 
The  court  in  Gaines  v.  Gaines,  9  B.  Mon.  308,  48  Am.  Dec.  425,  did 
not  adhere  to  the  doctrine  which  was  declared  in  Maguire  v.  Maguire, 
but  said:  "And  if  it  were  conceded,  as  intimated  in  Maguire  v.  Ma- 
guire, supra,  that  the  marriage  contract  is  not,  as  a  contract,  wholly  re- 
moved, like  other  contracts  from  the  power  of  the  legislature  to  dis- 
solve it  in  any  particular  case  by  special  act  of  divorce,  and  that  the 
dissolution  of  a  marriage,  if  required  by  the  public  good,  may  be  a 
legislative  function,  still  it  cannot  be  admitted  that  a  power  thus  de- 
duced, uncertain,  upon  principle,  as  to  its  existence,  and  still  more  un- 
certain as  to  the  grounds  of  its  legitimate  exercise,  can  override  the 
express  and  highly  conservative  prohibitions  in  the  constitution,  in- 
tended for  the  protection  of  private  rights  of  property.  We  are  of 
opinion,  therefore,  that  whatever  power,  to  be  exercised  in  view  of  the 
public  good,  the  legislature  may  have  to  enact  divorces  in  special  cases, 
as  it  cannot,  even  for  the  public  good,  change  the  right  of  private  prop- 
erty from  one  to  another  without  compensation,  much  less  can  it  do  so 
by  a  special  act  of  divorce,  sought  by  one  of  the  parties  against  the 
consent  of  the  other,  with  the  purpose  or  effect  of  operating  upon  the 
rights  of  property  incident  to  the  marriage  relation,  as  created  and 
sustained  by  the  general  laws  applicable  to  that  relation."  The  act  of 
the  legislature  in  question  does  not  attempt  to  dissolve  the  marriage 
contract,  nor  does  it  give  any  additional  grounds  upon  which  a  court 
might  do  it.  So  the  dictum  in  the  Maguire  Case,  to  wit,  "And  there- 
fore marriage,  being  much  more  than  a  contract,  and  depending  essen- 
tially on  the  sovereign  will,  is  not,  as  we  presume,  embraced  by  the 
constitutional  interdiction  of  legislative  acts,"  could  be  regarded  as  a 
correct  statement  of  constitutional  law,  and  still  would  have  no  appli- 
cation to  the  question  at  bar. 

We  have  not  felt  it  necessary  to  discuss  marriage  as  a  social  relation, 
nor  the  necessity  of  the  regulation  and  control  of  it  by  the  sovereign 
power  of  the  state.  Neither  have  we  felt  it  necessary  to  discuss  the 
question  as  to  the  power  of  the  legislature  to  prescribe  the  causes. for 
which  the  marriage  contract  or  relation  may  be  dissolved.  Neither 
would  it  be  profitable  to  determine  the  question  whether  marriage  is  a 
contract  sui  generis,  or  one  publici  juris,  or  both.  The  marriage  re- 
lation was  assumed  by  the  parties,  it  still  exists,  and  no  effort  is  made 
to  have  the  court  dissolve  it.  The  questions  we  have  been  called  upon 
to  determine  were :  (1)  What  rights  did  the  marriage  give  the  hus- 
band in  the  wife's  property?  (2)  Can  the  rights  thus  acquired  be  tak- 
en from  the  husband  by  the  legislature  and  given  to  the  wife?     Our 


58  LIFE    ESTATES   ARISING    FROM    MARRIAGE 

conclusions  are  supported  by  the  common  law,  by  the  consensus  of  ju» 
dicial  opinion,  and  by  the  ablest  writers  on  constitutional  law.  We 
have  thought  it  neither  wise  nor  judicial  to  disregard  the  rules  of  law, 
which  are  the  crystallization  of  judicial  opinion.  Neither  do  we  think, 
because  lawmakers  may  have  been  slow  in  giving  to  wives  freedom  in 
the  control  of  their  property,  that  we  should  give  our  sanction  to  a 
law  which,  if  upheld,  will  take  the  property  of  the  husband  and  give  it 
to  the  wife.  If  change  and  transition  are  to  take  place  in  the  domestic 
relationship,  although  right  and  for  the  public  good,  still  it  should  not 
be  done  at  the  sacrifice  of  vested  rights.  Judgment  is  affirmed.''' 
Hazelrigg,  Du  RellE,  and  Burnam,  JJ.,  dissent. 


II.  Curtesy 


FOSTER  V.  MARSHALL. 

(Superior  Court  of  Judicature  of  New  Hampshire,  1851.    22  N.  H.  491.) 

Writ  of  entry.  The  facts  in  this  case  are  sufficiently  stated  in  the 
opinion  of  the  court,  delivered  by 

Bell,  J.  The  principal  question  arising  in  this  case,  is  as  to  the 
effect  of  the  statute  of  limitations  upon  the  demandant's  right  of  ac- 
tion. It  appeared  that  the  demanded  premises  were  set  off  by  a  com- 
mittee of  partition,  appointed  by  the  court  of  probate,  to  Mary  Foster, 
formerly  Mary  Eastman,  the  mother  of  the  demandant,  as  her  share  of 
the  estate  of  her  father,  Samuel  Eastman,  deceased,  on  the  14th  of 
May,  1814.  Mary  Foster  was  then  the  wife  of  Frederick  Foster,  by 
whom  she  then  had  one  or  more  children.  Frederick  Foster  died  in 
1834,  and  his  wife  in  1836.  They  had  six  children,  whose  rights  are 
said  to  be  now  vested  in  the  plaintiff". 

The  defendant  proved,  that  in  1817,  one  Morrill  was  in  possession, 
claiming  to  be  the  owner  of  the  demanded  premises.    He  conveyed  the 

2  See,  also,  the  case  of  Myers  v.  Ilaiisbrough,  202  Mo.  495,  100  S.  W.  1137 
(1907),  holding  that,  while  the  Missouri  statute  creating  a  separate  estate  for 
married  women  deprives  the  husband  of  his  common-law  right  to  the  posses- 
sion of  his  wife's  estate  during  coverture,  nevertheless  the  statute  is  pro- 
spective and  not  retrospective,  and  that  where  the  marriage  occurred  before 
the  enactment  of  the  statute,  and  the  wife  owned  the  land  before  that  enact- 
ment, tlie  husband's  rights  remained  as  they  were  at  common  law.  That  the 
liusband's  vested  interests  in  genoi'al,  in  the  property  of  his  wife,  cannot  be  di- 
vested by  removal  to  another  state  or  by  subsequent  legislation,  see  Bush  v. 
Garner,  73  Ala.  162  (1S82);  Tinlcler  v.  Cox,  GS  111.  119  (1873);  Smith  v.  Mc- 
Atee,  27  Md.  420,  92  Am.  Dec.  641  (18G7).  The  law,  however,  of  the  state 
where  the  real  property  is  situated  governs  the  respective  rights  of  husband 
and  wife  thereto.  Nelson  v.  Goree,  PA  Ala.  565  (1859);  Depas  v.  Mayo,  11 
Mo.  314.  49  Am.  Dec.  88  (1848);  Kueeland  v.  Ensley,  Meigs  (Tenn.)  620,  33  Am. 
Dee.  168  (1838). 

3  For  discu.ssion  of  principles,  see  Burdick,  Real  Prop.  §§  48-52. 


CURTESY  59 

same  by  deed,  dated  July  3,  1817,  to  one  Marshall,  who  entered  and 
occupied,  claiming  title,  till  April  30,  1847,  when  he  conveyed  to  the 
tenant,  who  has  since  remained  in  possession.  The  tenant  claims  that 
he  has  a  perfect  title  by  thirty  years  undisturbed  and  peaceable  posses- 
sion. The  demandant  alleges  that  his  right  is  not  barred,  because  at 
the  time  when  the  disseisin  occurred,  in  1817,  Mrs.  Foster  was  a  feme 
covert,  and  up  to  1834  her  husband  had  an  estate  for  life  in  the  prem- 
ises and  she  had  no  right  of  entry  until  his  decease,  and  consequently 
no  right  of  action  till  then,  and  that  since  that  time  twenty  years  have 
not  elapsed. 

Under  the  statute  of  limitations,  which  was  in  force  in  this  state  be- 
fore the  Revised  Statutes,  it  must  be  considered  settled,  that  the  stat- 
ute did  not  affect  the  right  of  a  remainderman  or  reversioner,  during  the 
continuance  of  the  particular  estate ;  and  that  neither  the  acts  nor  the 
laches  of  the  tenant  of  the  particular  estate  could  affect  the  party  enti- 
tled in  remainder.  Wells  v.  Prince,  9  Mass.  508;  Wallingford  v. 
Hearl,  15  Mass.  471 ;  Tilson  v.  Thompson,  10  Pick.  (Mass.)  359. 

No  right  of  entry  or  action  accrued  to,  or  vested  in  the  heirs  of  the 
wife  during  the  continuance  of  an  estate  by  the  curtesy.  Jackson  v. 
Schoonmaker,  4  Johns.  (N.  Y.)  390. 

But  the  party  entitled  is  not  barred,  until  the  usual  period  of  limita- 
tion after  the  termination  of  the  life  estate.  Heath  v.  White,  5  Conn. 
228;  Witham  v.  Perkins,  2  Greenl.  (Me.)  400. 

If,  then,  the  husband  had,  in  this  case,  an  estate  by  the  curtesy,  or 
any  interest  in  the  land  which  would  entitle  his  wife,  who  survived,  to 
be  regarded  as  seised  only  in  remainder  or  reversion,  she  and  her  heirs 
would  have  the  full  period  of  twenty  years  after  the  death  of  the  hus- 
band, to  commence  their  action. 

To  constitute  a  tenancy  by  the  curtesy,  the  death  of  the  wife  is  one 
of  the  four  things  required.  The  estate  of  the  husband  is  initiate  up- 
on the  birth  of  issue.  It  is  consummate  on  the  death  of  the  wife.  4, 
Kent's  Comm.  29 ;   Co.  Litt.  30,  a. 

By  the  intermarriage,  the  husband  acquires  a  freehold  interest,  dur- 
ing the  joint  lives  of  himself  and  his  wife,  in  all  such  freehold  property 
of  inheritance,  as  she  was  seised  of  at  the  time  of  marriage,  and  a  like 
interest  vests  in  him  in  such  as  she  may  become  seised  of  during  the 
coverture.  The  husband  acquires  jointly  with  the  wife,  a  seisin  in  fee 
in  the  wife's  freehold  estates  of  inheritance,  the  husband  and  wife  be- 
ing seised  in  fee  in  right  of  the  wife.  Gilb.  Ten.  108;  Co.  Litt.  67,  a.; 
Palyblank  v.  Hawkins,  1  Saund.  253,  n. ;  s.  c.  Doug.  350. 

This  interest  may  be  defeated  by  the  act  of  the  wife  alone;  as  if,  at 
common  law,  the  wife  is  attainted  of  felony,  the  lord  by  escheat  could 
enter  and  eject  the  husband.  4  Hawk.  P.  C.  78;  Co.  Litt.  40,  a.;  Vin. 
Ab.  Curtesy,  A;  Co.  Litt.  351,  a. 

After  the  birth  of  issue  the  husband  is  entitled  to  an  estate  for  his 
own  life,  and  in  his  own  right,  as  tenant  by  the  curtesy  initiate.  Co. 
Litt.  351,  a.  30,  a.  124,  b. ;   Schermerhorn  v.  Miller,  2  Cow.  (N.  Y.)  439. 


60  LIFE    ESTATES    ARISING    FROM    MARRIAGE 

He  then  becomes  sole  tenant  to  the  lord,  and  is  alone  entitled  to  do 
homage  for  the  land,  and  to  receive  homage  from  the  tenants  of  it, 
which  until  issue  born  must  be  done  by  husband  and  wife.  2  Black. 
Comm.  126;  Litt.  §  90;  Co.  Litt.  Q ,  a.  30,  a. 

Then  he  may  forfeit  his  estate  for  life  by  a  felony,  which,  until  issue 
born,  he  could  not  do,  because  his  wife  was  the  tenant.  2  Black. 
Comm.  126;  Roper,  Hus.  &  Wife,  47. 

If  the  husband,  after  the  birth  of  issue,  make  a  feoffment  in  fee,  and 
then  the  wife  dies,  the  feoffee  shall  hold  the  land  during  the  husband's 
life ;  because  by  the  birth  of  issue,  he  was  entitled  to  curtesy,  which 
beneficial  interest  passed  by  the  feoffment.    Co.  Litt.  30,  a. 

If  such  feoffment  is  made  before  issue  born,  the  husband's  right  to 
curtesy  is  gone,  even  though  the  feoffment  be  conditional  and  be  after- 
w^ards  avoided.  And  if  in  such  case  the  husband  and  wife  be  divorced 
a  vinculo  matrimonii,  the  wife  may  enter  immediately.  Guneley's  Case, 
8  Co.  Rep.  7Z. 

The  husband's  estate  after  issue  born,  will  not  be  defeated  by  the 
attainder  of  the  wife,  for  his  tenancy  continues,  he  being  sole  tenant. 
1  Hale,  P.  C.  359;  Co.  Litt.  351,  a.  40,  a. ;  Bro.  Ab.  Forf.  78. 

The  obvious  conclusion  from  these  views  of  the  nature  of  the  inter- 
est of  a  tenant  by  tlie  curtesy  initiate  is,  that  such  tenant  is  seised  of  a 
freehold  estate  in  his  own  right,  and  the  interest  of  his  wife  is  a  mere 
reversionary  interest,  depending  upon  the  life  estate  of  the  husband. 
The  necessary  result  of  this  is,  that  the  wife  cannot  be  prejudiced  by 
any  neglect  of  the  husband,  and  of  course  she  may  bring  her  action,  or 
one  may  be  brought  by  her  heirs,  at  any  time  within  twenty  years  after 
the  decease  of  the  husband,  when  his  estate  by  the  curtesy,  whether  in- 
itiate, or  consummate,  ceases,  and  her  right  of  action,  or  that  of  her 
heirs,  accrues.  In  this  respect  there  is  no  distinction  between  curtesy 
initiate  and  curtesy  consummate.  Melvin  v.  Locks  &  Canals,  16  Pick. 
(Mass.)  140. 

So  far  as  we  are  aware,  this  principle  has  never  been  questioned, 
where  the  inheritance  of  the  wife  has  been  conveyed  to  a  third  person, 
either  by  the  deed  of  the  husband  alone,  or  by  a  deed  executed  by 
husband  and  wife,  which  from  some  defect  did  not  bind  the  interest  of 
the  wife.  Miller  v.  Shackleford,  3  Dana  (Ky.)  289;  Coller  v.  Motzer, 
13  Serg.  &  R.  (Pa.)  356,  15  Am.  Dec.  604;  Pagan  v.  Walker,  27  N.  C. 
634;  McCorry  v.  King,  3  Humph.  (Tenn.)  267,  39  Am.  Dec.  165; 
Melius  v.  Snowman,  21  Me.  201 ;  Meramon  v.  Caldwell,  8  B.  Mon. 
(Ky.)  32,  46  Am.  Dec.  537;  Gill  v.  Fauntleroy,  8  B.  Mon.  (Ky.)  177; 
Melvin  v.  Locks  &  Canals,  16  Pick.  (Mass.)  140.  But  it  has  been  held 
(Melvin  v.  Locks  &  Canals,  16  Pick.  [Mass.]  161 ;  Kittridge  v.  Locks 
&  Canals,  17  Pick.  [Mass.]  246,  28  Am.  Dec.  296)  that  where  a  dissei- 
sin has  been  committed  upon  the  wife's  estate,  the  disseisin  is  done 
alike  to  the  husband  and  wife ;  that  a  joint  right  of  entry  and  of  action 
accrued  to  both  for  the  recovery  of  it,  and  that  if  such  remedy  is  not 
prosecuted  within  twenty  years,  it  is  barred. 


CURTESY  I  61 

This  is  true  where  the  husband  has  acquired  no  estate  by  the  curtesy, 
and  is  seised  merely  in  the  right  of  the  wife  of  her  estate.  Such  are 
the  cases  of  Guion  v.  Anderson,  8  Humph.  (Tenn.)  298;  Melius  v. 
Snowman,  21  Me.  201. 

And  if  the  husband  is  tenant  by  curtesy,  as  he  and  his  wife  are  seised 
of  the  fee  in  right  of  the  wife,  tlie  action  must  be  brought  by  husband 
and  wife,  and  a  joint  seisin  in  fee  alleged  in  them  in  her  right.  Anon. 
Buls.  21.  Their  joint  right  of  action  is  barred  by  the  lapse  of  twenty 
years  after  it  accrues.  But  it  by  no  means  follows,  that  the  reversion- 
ary right  of  the  wife,  accruing  in  possession  after  the  estate  of  her  hus- 
band has  ceased,  is  also  barred.  It  is  well  settled,  that  the  same  party 
may  have  several  and  successive  estates  in  the  same  property,  and  sev- 
eral rights  of  entry  by  virtue  of  those  estates,  and  one  of  those  rights 
may  be  barred  without  the  others  being  affected.  Hunt  v.  Burn,  2 
Salk.  422 ;  Wells  v.  Prince,  9  Mass.  508 ;  Stevens  v.  Winship,  1  Pick. 
(Mass.)  318,  11  Am.  Dec.  178;  Tilson  v.  Thompson,  10  Pick.  (Mass.) 
359. 

And  every  reason,  which  can  exist  in  favor  of  the  right  of  any  re- 
versioner, applies  equally  in  this  case,  namely,  that  a  reversioner  has, 
as  such,  no  right  of  entry  and  no  right  of  action  during  the  particular 
estate,  and  consequently  is  not  barred  until  twenty  years  after  his  own 
right  of  entry  accrued.  2  Sugd.  V.  &  P.  353 ;  3  Steph.  N.  P.  2920,  n. 
10 ;  Wells  V.  Prince,  9  Mass.  508 ;  Stevens  v.  Winship,  1  Pick.  (Mass.) 
318;  Wallingford  v.  Hearl,  15  Mass.  471;  Tilson  v.  Thompson,  10 
Pick.  (Mass.)  359 ;  Jackson  v.  Schoonmaker,  4  Johns.  (N.  Y.)  390,  be- 
fore cited.  Besides,  the  wife  by  reason  of  her  disability  can  make  no 
entry  to  revest  her  estate  during  the  coverture.  Litt.  p.  403 ;  Co.  Litt. 
246,  a.  Coke  says,  in  express  terms,  "after  coverture,  she  (the  wife) 
cannot  enter  without  her  husband." 

In  Jackson  v.  Johnson,  5  Cow.  (N.  Y.)  74,  15  Am.  Dec.  433,  and  Heath 
V.  White,  5  Conn.  228,  this  question  arose,  and  was  decided  in  accord- 
ance with  our  views,  and  we  think  upon  sounder  principles  than  the 
cases  in  Massachusetts,  to  which  we  have  referred. 

We  have  compared  the  provisions  of  the  Revised  Statutes  with  the 
older  statutes,  and  do  not  perceive,  that  there  is,  as  to  the  point  in  ques- 
tion, any  difference  in  their  effect.  Under  neither  would  the  plaintiff 
propose  to  claim  any  advantage  from  the  proviso.  His  ground  is  not 
that  the  ancestor  was  a  married  woman,  when  her  right  accrued ;  but 
that  her  marriage  and  the  birth  of  one  or  more  children  had  vested  a 
life  estate  in  her  husband,  and  that  the  disseisin  was  done  to  him,  and 
that  no  right  of  action  accrued  to  her  in  virtue  of  the  reversionary 
interest,  under  which  her  heirs  now  claim,  until  she  became  a  widow, 
and  the  husband's  estate  had  terminated ;  and  that  the  action  is  brought 
within  twenty  years  after  that  event. 

This  appears  to  us  a  correct  view  of  the  case,  and  of  the  law;  and 
the  verdict  must  therefore  be  set  aside,  and  a  new  trial  granted. 


62  LIFE    ESTATES    ARISING    FROM    MARRIAGE 


III.  Estates  Subject  to   Curtesy  * 


BOZARTH  V.  LARGENT. 
(Supreme  Court  of  Illinois,  1889,     128  111.  95,  21  N.  E.  218.) 

Error  to  circuit  court,  Tazewell  county ;    N.  W.  Green,  Judge. 

ShopE,  J.  This  was  an  action  of  ejectment,  brought  by  James  Boz- 
arth,  Mary  L.  Bozarth,  and  Ida  B.  Cook,  the  heirs  at  law  of  Louisa 
Bozarth,  deceased,  against  William  Largent,  for  the  recovery  in  fee 
of  the  E.  1/2  S.  W.  14  section  17,  and  the  W.  1/0  of  the  S.  W.  14  of 
section  8,  all  in  township  23  N.,  range  2  W.  of  the  third  P.  M.,  in 
Tazewell  county.  General  issue  was  filed,  and  a  trial  had,  resulting 
in  a  finding  and  judgment  for  defendant.  Plaintiflfs  below  prosecute 
this  writ  of  error.  The  facts  are  as  follows :  Louisa  Bozarth,  now- 
deceased,  being  the  owner  in  fee  of  said  lands,  which  she  had  in- 
herited from  her  father,  was,  on  August  19,  1863,  married  to  Asa 
Bozarth.  They  lived  together  as  husband  and  wife  until  November 
1,  1868,  when  she  died,  intestate,  leaving  her  husband,  who  is  still 
living,  and  the  plaintiffs,  her  children  and  only  heirs  at  law,  surviv- 
ing her.  On  March  5,  1868,  she  and  her  husband  executed  their  mort- 
gage upon  the  lands  in  controversy,  and  other  lands  of  the  husband. 
to  Anna  R,  Cohrs,  to  secure  the  payment  of  $2,500  evidenced  by  the 
note  of  Asa  Bozarth,  the  husband,  payable  two  years  after  date,  with 
10  per  cent,  interest,  payable  annually,  and  containing  a  clause  that, 
in  default  of  the  payment  of  the  annual  interest,  the  principal  should 
become  due.  The  mortgage  was  in  the  usual  form,  and  contained  a 
release  of  all  homestead  rights ;  and  the  wife  acknowledged  the  re- 
lease of  all  her  rights  of  homestead,  but  the  husband  did  not  acknowl- 
edge the  release  of  homestead,  his  acknowledgment  being  simply  that 
he  acknowledged  the  mortgage  to  be  his  free  act  and  deed  for  the 
uses  and  purposes  therein  set  forth.  On  March  27,  1873,  Mary  C. 
Maus,  the  assignee  of  said  note  and  mortgage,  filed  her  bill  in  the  cir- 
cuit court  of  Tazewell  county  against  the  said  Asa  Bozarth,  and  the 
plaintiff's  and  others,  for  the  foreclosure  of  said  mortgage.  Summons 
was  duly  served  on  all  the  defendants,  and  a  guardian  ad  litem 
was  appointed  for  James,  Ida  B.,  and  Mary  Bozarth,  the  plain- 
tiffs, they  being  then  minors,  who  answered.  At  the  May  term, 
1873,  a  decree  was  entered,  foreclosing  said  mortgage,  and  finding 
due  thereon  the  sum  of  $2,973.75,  and  a  solicitor's  fee  of  $125,  pro- 
vided for  in  the  mortgage,  and  ordering  a  sale  of  the  premises,  etc. 
Sale  was  made  under  said  decree  July  12,  1873,  to  William  Don  Maus, 
for  the  sum  of  $3,048.84.     The  sale  was  made  en  masse,  the  master 

*  For  fliscu.ssion  of  principles,  see  Rurdick.  Ron!  Prop,  f  49. 


ESTATES  SUBJECT  TO  CURTESY  63 

having  failed  to  obtain  bids  on  the  several  tracts  when  separately 
offered.  Certificate  of  purchase  was  made  and  recorded  the  same 
day.  At  the  May  term,  1874,  of  the  McLean  circuit  court,  Albert 
Welch  recovered  a  judgment  against  the  said  Asa  Bozarth,  John  Bo- 
zarth,  and  Elihu  Bozarth  for  $1,250.50  and  costs.  Execution  was  is- 
sued to  the  sheriff  of  McLean  county,  and  returned  August  19,  1874, 
when  Welch  assigned  the  judgment  to  George  W.  Thompson.  On 
the  same  day  an  alias  execution  issued  to  the  sheriff  of  Tazewell 
county,  which  came  to  that  officer's  hands  August  20,  1874,  and  was 
levied  on  all  the  land  sold  under  the  foreclosure  decree,  and  a  cer- 
tificate of  levy  was  filed  and  recorded  August  31,  1874.  On  October 
10,  1874,  a  certificate  of  redemption  from  the  sale  under  the  decree 
of  July  12,  1873,  was  executed  by  the  sheriff  of  Tazewell  county, 
and  recorded  the  same  day.  On  October  31,  1874,  the  land  was  sold 
en  masse  by  the  sheriff  to  Welch  for  redemption  money  and  costs. 
On  January  14,  1875,  after  the  term  of  office  of  the  sheriff  had  ex- 
pired, he  made  and  delivered  to  Welch  a  deed  for  the  premises,  dating 
the  same  as  of  the  day  of  sale.  On  the  same  day,  Pratt,  the  then 
sheriff,  also  executed  a  deed  to  Welch  for  the  lands  on  the  same  sale. 
Welch  and  wife,  by  their  deed  of  December  1,  1875,  conveyed  the 
land  to  John  Bozarth,  and  he,  on  May  22,  1882,  conveyed  the  same 
to  William  Largent,  defendant  in  error,  who  went  into  possession  of 
the  same. 

At  the  common  law  a  husband  held  in  right  of  his  wife  all  her 
lands  in  possession,  and  owned  the  rents  and  profits  thereof  absolute- 
ly. I  Washb.  Real  Prop.  276;  Tied.  Real  Prop.  §  90;  Haralson  v. 
Bridges,  14  111.  37;  Clapp  v.  Inhabitants  of  Stoughton,  10  Pick. 
(Mass.)  463 ;  Decker  v.  Livingston,  15  Johns.  (N.  Y.)  479.  The  birth 
of  issue  was  not  necessary  to  this  right  of  the  husband,  which  con- 
tinued during  the  joint  lives  of  the  husband  and  wife.  It  was  called 
an  estate  during  coverture,  or  the  husband's  freehold  estate  jure  uxoris. 
Kibbie  v.  Williams,  58  111.  30 ;  Butterfield  v.  Beall,  3  Ind.  203 ;  Mont- 
gomery v.  Tate,  12  Ind.  615;  Croft  v.  Wilbar,  7  Allen  (Mass.)  248. 
It  differed  from  curtesy  initiate,  in  its  being  a  vested  estate  in  pos- 
session, while  the  latter  is  a  contingent  future  estate,  dependent  upon 
the  birth  of  issue.  Wright's  Case,  2  Md.  429-453,  56  Am.  Dec.  723. 
It  is  held  in  right  of  the  wife,  and  was  not  added  to  or  diminished  when 
curtesy  initiate  arose.  Subject  to  the  husband's  beneficial  enjoyment 
during  coverture,  the  ownership  remained  in  the  wife,  and,  on  dis- 
solution of  the  marriage,  was  discharged  from  such  estate  of  the 
husband.  Stew.  Husb.  &  W.  §  146.  Where  there  was  marriage, 
seisin  of  the  wife,  and  birth  of  issue  capable  of  inheriting,  the  hus- 
band, by  the  common  law,  took  an  estate  in  the  wife's  land  during 
coverture.  This  was  an  estate  of  tenancy  by  the  curtesy  initiate,  and 
which  would  become  consummate  upon  the  death  of  the  wife  in  the 
life-time  of  the  tenant.  A  tenant  by  the  curtesy  was  seised  of  an 
estate  of  freehold,  which  was  subject  to  alienation,  and  was  liable  to 


64  LIFE    ESTATES    ARISING    FROM    MARRIAGB 

be  taken  on  execution  for  his  debts.  Tied.  Real  Prop.  §  101 ;  Howey 
V.  Goings,  13  111.  95,  54  Am.  Dec.  427 ;  Jacobs  v.  Rice,  33  111.  369 ; 
Cole  V.  Van  Riper,  44  111.  58;  Beach  v.  MiUer,  51  111.  206,  2  Am.  Rep. 
290;  Lang  v.  Hitchcock,  99  111.  550. 

The  act  of  1861,  known  as  the  "Married  Woman's  Act"  provides: 
"That  all  the  property,  both  real  and  personal,  belonging  to  any  mar- 
ried woman  as  her  sole  and  separate  property,  or  w^hich  any  Avoman 
hereafter  married  owns  at  the  time  of  her  marriage,  or  which  any 
married  woman  during  coverture  acquires  in  good  faith  from  any 
person  other  than  her  husband,  by  descent,  devise,  or  otherwise,  to- 
gether with  all  the  rents,  issues,  increase,  and  profits  thereof,  shall, 
notwithstanding  her  marriage,  be  and  remain  during  coverture,  her 
sole  and  separate  property,  under  her  sole  control,  and  be  held,  owned, 
possessed,  and  enjoyed  by  her  the  same  as  though  she  was  sole  and 
unmarried,  and  shall  not  be  subject  to  the  disposal,  control,  or  inter- 
ference of  her  husband,  and  shall  be  exempt  from  execution  or  at- 
tachment for  the  debts  of  her  husband."  In  this  case,  Louisa  Bozarth, 
who  was  common  source  of  title,  was  the  owner  of  the  land  in  con- 
troversy, as  it  is  conceded,  at  the  time  of  her  marriage,  August  19, 
1863,  to  Asa  Bozarth.  The  marriage  having  taken  place  after  the  act 
of  1861  took  effect,  and  the  wife  being  then  the  owner  of  the  land  in 
question,  it  was  not,  during  her  coverture,  subject  to  the  control,  in- 
terference, or  disposal  of  her  husband,  or  liable  for  his  debts  or  other 
obligations.  The  effect  of  the  statute  was  to  abrogate  the  husband's 
estate  in  her  lands,  or  the  estate  he  would  have  had  at  common  law 
during  the  coverture,  and  consequently  during  that  period  he  had 
no  estate  therein  liable  to  execution  or  attachment.  The  act  did  away 
with  the  estate  he  would  have  had  at  common  law,  growing  out  of 
the  mere  marital  relation,  and  of  his  curtesy  initiate;  and  it  there- 
fore follows,  if  the  wife  had  been  living  at  the  time  of  the  redemption' 
and  sale  by  the  creditor  of  her  husband,  that  proceeding  would  not 
have  divested  any  right  of  herself  or  husband,  nor  conferred  any  right 
upon  the  purchaser. 

The  question,  however,  remains  whether  Asa  Bozarth,  the  husband, 
on  the  death  of  his  wife,  in  1868,  acquired  an  estate  in  her  land  as 
tenant  by  the  curtesy.  We  have  already  seen  that  the  property  of 
a  married  woman,  under  the  act  of  1861,  notwithstanding  her  mar- 
riage, was  to  be  and  remain  during  coverture  her  sole  and  separate 
property,  and  was  not  subject  to  the  husband's  control,  or  liable  for 
his  debts.  The  general  effect  of  statutes  of  this  kind  is  to  destroy 
the  marital  rights  of  the  husband  in  his  wife's  estate;  but  a  statute 
may  exempt  her  property  from  his  debts  without  in  any  way  destroy- 
ing his  rights  therein.  Unless  tenancy  by  the  curtesy  is  destroyed  by 
the  statute  by  express  words  or  necessary  implication,  or  by  the  wife's 
disposition  of  her  property  by  virtue  of  her  power  over  it,  he  will  be 
held  to  have  an  estate  by  the  curtesy  at  her  death.  The  prevailing 
opinion   seems  to  be  that  while  separate  property  acts   do  suspend 


^  ESTATES  SUBJECT  TO  CURTESY  65 

during  coverture  all  the  rights  of  a  husband,  or  his  creditors,  in  statu- 
tory separate  property,  they  do  not  destroy  curtesy,  or  prevent  its 
vesting  on  her  death,  unless  such  an  event  is  clearly  excluded  by  the 
statute;  as  where  the  statute  not  only  provides  that  the  property  of 
the  wife  shall  be  hers,  etc.,  but  also  defines  her  husband's  interest 
therein,  if  she  dies  intestate,  in  which  case  curtesy  is  excluded.  Where 
she  has  power  to  alienate  or  charge  her  property,  she  may  thereby 
defeat  curtesy,  but  the  statute  must  contain  express  words  to  enable 
her  to  convey  alone ;  and,  also,  when  she  has  power  of  disposition  of 
the  property  by  will  she  may  thereby  defeat  curtesy.  Stew.  Husb.  & 
W.  §§  161,  243  ;  In  re  Winne,  2  Lans.  (N.  Y.)  21 ;  Hatfield  v.  Sneden,  54 
N.  Y.  280;  Noble  v.  McFarland,  51  111.  226;  Freeman  v.  Hartman,  45 
111.  57,  92  Am.  Dec.  193 ;  Cole  v.  Van  Riper,  supra. 

It  will  be  seen  that  the  married  woman's  act  of  1861  does  not  at- 
tempt to  define  the  husband's  rights  in  his  wife's  property  after  her 
decease,  nor  does  it  give  her  any  power  of  disposal  of  her  separate 
property,  independent  of  the  husband.  The  purpose  and  effect  of 
the  statute  was  to  secure  to  the  wife  the  control  of  her  separate  prop- 
erty during  coverture.  During  that  period  the  husband's  common-law 
rights  in  her  property  are  suspended.  We  are  of  opinion  that  this  act 
did  not  have  the  efi^ect  of  destroying  the  estate  by  curtesy,  but  that, 
after  the  passage  of  that  act,  and  prior  to  the  passage  of  the  act  of 
1874,  the  husband,  on  his  wife's  death,  leaving  issue  of  the  mar- 
riage, took  a  life-estate  in  her  land  as  tenant  by  the  curtesy.  After 
the  passage  of  the  act  under  consideration,  the  estate,  by  the  curtesy 
in  the  lands  of  the  wife,  did  not  vest  in  the  husband  until  the  death 
of  the  wife,  (Lucas  v.  Lucas,  103  111.  121;  Beach  v.  Miller,  51  III. 
206,  2  Am.  Rep.  290,)  but  upon  her  death  such  estate  became  consum- 
mate, and  vested  in  the  husband  in  all  respects  as  at  common  law. 
Noble  V.  McFarland,  51  111.  226;  Shortall  v.  Hinckley,  31  111.  219; 
Gay  V.  Gay,  123  111.  221,  13  N.  E.  813 ;  Castner  v.  Walrod,  83  111.  171, 
25  Am.  Rep.  369.  It  follows  that  we  are  of  opinion  that  upon  the 
death  of  the  wife,  in  1868,  leaving  issue  surviving,  the  husband,  Asa 
Bozarth,  became  seised  of  a  freehold  interest  in  the  lands  in  con- 
troversy as  tenant  by  the  curtesy,  and  which  was  subject  to  seizure 
and  sale  on  execution  against  him. 

The  validity  of  the  sale  of  the  premises  under  the  decree  of  fore- 
closure, and  the  redemption  upon  the  execution  issued  upon  the  judg- 
ment in  favor  of  Welch,  and  against  the  said  Asa  Bozarth,  and  the 
sale  thereunder,  are  questio'ned  by  plaintiff  in  error.  If  the  fore- 
closure sale  was  void  for  any  cause,  the  judgment  creditor  redeeming 
therefrom  acquired  no  title  under  his  purchase,  for  the  reason  that 
his  rights,  like  those  of  the  purchaser  at  the  sale  under  the  decree  of 
foreclosure,  are  dependent  upon  a  valid  judgment  or  decree  and 
sale.  Johnson  v.  Baker,  38  111.  99,  87  Am.  Dec.  293 ;  Mulvey  v.  Car- 
penter, 78  111.  580 ;  Keeling  v.  Heard,  3  Head  (Tenn.)  592. 
Burd.Cas.Real  Prop. — 5 


66  LIFE    ESTATES    ARISING    FROM    MARRIAGE 

It  is  objected  that  there  was  no  sufficient  service  of  summons  upon 
the  plaintiffs  in  error,  who  were  defendants  in  the  foreclosure  suit. 
The  return  to  the  summons  therein  is  as  follows :  -  "Executed  this  writ 
by  reading  the  same  to  the  within-named  Asa  Bozarth,  James  Bozarth, 
Ida  Bell  Bozarth,  and  Mary  Bozarth,  and  by  delivery  to  each  a  true 
copy  hereof,  on  the  10th  day  of  April,  1872,"  and  properly  signed  by 
the  sheriff.  The  process  was  returnable  to  the  May  term,  1873. 
The  service  was  in  apt  time.  The  fact  that  the  summons  was  read  to 
the  defendants  did  no  harm,  and  that  part  of  the  return  may  be  dis- 
regarded. It  is  apparent  that  the  circuit  court  had,  therefore,  juris- 
diction of  the  subject-matter  and  of  the  parties,  and  mere  errors  or  ir- 
regularities, if  any,  cannot  be  taken  advantage  of  in  this  collateral  pro- 
ceeding. 

It  is  objected  that  the  mortgaged  premises  were  improperly  sold  en 
masse.  If  this  be  conceded,  it  would  not  render  the  sale  void ;  at 
most,  it  would  only  be  ground  for  setting  the  sale  aside  on  proper  appli- 
cation to  the  court  in  apt  time.  It,  however,  appears  that  the  land 
was  offered  by  the  master  in  separate  parcels,  and,  receiving  no  bids 
therefor,  it  was  then  offered  and  sold  en  masse.  We  are  not  pre- 
pared to  say  that  the  action  of  the  master  was  not  warranted. 

It  is  next  objected  that  all  the  lands  sold  under  the  decree  were  re- 
deemed en  masse,  and  so  sold  to  Welch  under  the  execution.  A  judg- 
ment creditor's  right  of  redemption  is  no  greater  or  more  extensive 
than  that  of  the  original  debtor.  He  cannot  redeem  in  a  case  where  the 
original  owner  cannot  redeem,  and  within  the  time  allowed  by  law  for 
redemption  by  the  debtor.  In  Hawkins  v.  Vineyard,  14  111.  26,  56 
Am.  Dec.  487,  a  quarter  section  of  land  had  been  sold,  of  which  the 
debtor  owned  only  65  acres,  and  it  was  held  he  could  not  redeem  the  65 
acres,  but  that  he  must  redeem  the  whole  or  none.  A  person  cannot 
redeem  an  undivided  share  of  land  by  paying  his  proportional  share 
of  the  debt ;  and  a  part  owner  must  redeem  the  whole.  Durley  v. 
Davis,  69  111.  133.  A  purchaser  of  a  part  of  mortgaged  land  cannot 
redeem  that  part  by  paying  his  proportion  of  the  debt.  Meacham  v. 
Steele,  93  111.  135.  When  the  purchaser  at  a  master's  sale  of  an  entire 
tract  of  land  afterwards  assigns  an  undivided  interest  in  such  pur- 
chase, there  can  be  no  legal  redemption  of  such  undivided  interest  by 
a  judgment  creditor.  "Groves  v.  Maghee,.  72  111.  526;  Titsworth  v. 
Stout,  49  111.  78,  95  Am.  Dec.  577. 

Section  25,  c.  17 ,  Rev.  St.,  provides :  "Any  person  entitled  to  re- 
deem may  redeem  the  whole  or  any  part  of  the  premises  sold  in  like 
distinct  parcels  or  quantities  in  which  the  same  were  sold."  If  the 
several  mortgaged  tracts  had  been  sold  separately,  redemption  might 
have  been  made  of  any  one  or  more  of  the  tracts.  In  such  case  the 
amount  that  each  tract  sold  for  would  furnish  the  basis  for  determin- 
ing the  amount  to  be  paid  in  order  to  redeem ;  but,  as  the  several 
parcels  of  land  were  sold  together,  and  for  a  gross  sum,  neither  the 


'  ESTATES  SUBJECT  TO  CURTESY  67 

debtor  nor  his  judgment  creditor  could  redeem  without  paying  the 
full  amount  for  which  the  same  sold,  with  interest.  The  law  gives  the 
debtor  12  months  in  which  to  redeem,  after  which  time  any  judgment 
creditor  of  the  debtor  may  also  redeem  within  15  months  from  the 
date  of  the  sale ;  but,  in  so  doing,  the  creditor  will  possess  no  greater 
right  than  his  debtor  had  within  the  time  limited  for  redemption  by 
him.  After  the  expiration  of  12  months  from  the  sale,  the  right  of 
redemption  of  the  judgment  debtor  is  gone.  He  no  longer  has  any 
interest  in  the  premises,  and  cannot  take  advantage  of  mere  irregu- 
larities in  making  redemption  by  his  judgment  creditor,  and  his  ac- 
quisition of  title  by  virtue  of  a  sale  in  pursuance  of  such  redemption. 
The  purchaser  at  the  foreclosure  sale  makes  no  objection  to  the 
validity  of  the  redemption,  and,  having  accepted  the  money,  the  re- 
demption was  complete.  The  title  of  Asa  Bozarth  being  gone  by  his 
failure  to  redeem  within  the  time  allowed  by  law,  he  was  not  injured 
by  a  sale  en  masse  on  the  execution,  if,  indeed,  the  sale  could  have 
been  otherwise  made. 

"There  is  no  force  in  the  objection  that  the  redemption  should  have 
been  made  in  the  name  of  Thompson,  assignee  of  Welch,  the  judgment 
creditor.  Sweezey  v.  Chandler,  11  111.  445.  It  in  no  way  concerns 
the  plaintiffs  in  error  whether  redemption  was  made  in  the  name  of 
the  plaintiff  in  the  judgment  against  Asa  Bozarth  or  in  the  name  of 
his  assignee.  No  proof  was  made  or  offered  at  the  trial  tending 
to  show  that  the  premises,  when  sold  under  the  decree  of  foreclosure, 
or  when  the  mortgage  was  given,  were  occupied  by  the  mortgagors,  or 
either  of  them,  as  a  homestead ;  nor  does  it  appear  that  they  were  at 
any  time  so  occupied.  Therefore,  the  question  of  the  right  of  home- 
stead was  not  presented  for  adjudication,  and  cannot  now  be  con- 
sidered in  this  court.  It  may,  however,  be  observed  that  the  mortgage 
was  executed  and  acknowledged  before  the  act  of  1872,  relating  to 
conveyances,  took  effect,  and  the  cases  cited  by  counsel  were  deter- 
mined under  the  provisions  of  that  act. 

It  is  claimed  that  only  the  title  of  Louisa  Bozarth  passed  by  the 
sale  under  the  decree  of  foreclosure,  and  therefore  a  creditor  of  her 
husband  could  not  redeem  from  that  sale.  This  contention  is  not 
well  grounded.  While  the  husband,  as  we  have  seen,  at  the  time  of 
the  execution  of  the  mortgage  had  no  estate  in  the  land,  it  was  nec- 
essary to  the  execution  of  a  valid  mortgage  or  conveyance  of  his 
wife's  estate  therein  that  he  should  join  in  the  mortgage  or  convey- 
ance, which  he  did.  The  mortgage  was  in  the  usual  form,  and  con- 
tained covenants  of  both  the  husband  and  wife  of  good  right  to  con- 
vey, seisin  in  fee,  and  of  general  warranty,  and  was  sufficient  to 
pass  not  only  the  estate  of  the  wife,  but  also  all  the  estate,  right,  and 
interest  of  the  husband  in  the  property,  which  he  then  had,  or  might 
subsequently  acquire.  If  he  had.no  estate  by  the  curtesy  initiate  or 
otherwise  during  the  life  of  the  wife,  upon  her  death,  he  took  an 


68  LIFE    ESTATES    ARISING    FROM    MARRIAGE 

estate  for  life  in  this  land  as  tenant  by  the  curtesy,  which,  under  the 
covenants  of  the  mortgage,  inured  to  tlie  benefit  of  the  mortgagor, 
Gochenour  v.  Mowry,  33  111.  331.  The  sheriff's  deed  was  dated  Oc- 
tober 31,  1874,  the  date  of  the  sale  upon  the  redemption,  but  was,  in 
fact,  executed  January  14,  1875,  after  the  term  of  office  of  the  sheriff 
had  expired.  Section  21  of  the  act  relating  to  judgments,  etc.,  provides 
that  the  redeeming  judgment  creditor  shall  be  considered  as  having  bid 
at  the  sale  the  amount  of  the  redemption  money  paid  by  him,  with  in- 
terest thereon,  and  the  costs  of  the  redemption  and  sale;  "and,  if  no 
greater  amount  is  bid  at  such  sale,  the  premises  shall  be  struck  off  to 
such  person  making  such  redemption,  and  the  officers  shall  forthwith 
execute  a  deed  of  the  premises  to  him,  and  no  other  redemption  shall 
be  allowed."  It  is  urged  that  the  provision  of  the  statute  requiring 
the  deed  to  be  made  "forthwith"  is  mandatory,  and  that  a  failure  in 
this  respect  would  render  the  sale  void.  We  are  not  prepared  to  so 
hold.  The  purchaser  is  entitled  to  a  deed  forthwith  in  such  case,  but 
the  failure  of  the  sheriff  to  make  the  deed  immediately  after  the  sale  will 
not  render  the  redemption  and  sale  invalid.  This  provision  of  the 
statute  must  be  regarded  as  directory  only. 

It  is  lastly  objected  that  Reeves,  the  sheriff,  had  no  authority  to 
make  the  deed  after  his  term  of  office  had  expired.  Section  30  of  the 
act  relating  to  judgments,  etc.,  provides:  "The  deed  shall  be  executed 
by  the  sheriff,  master  in  chancery,  or  other  officer  who  made  such  sale, 
or  by  his  successor  in  office,  etc."  Freeman,  in  his  work  on  Execution, 
(section  327,)  says:  "The  officer  who  made  the  sale,  whether  he  con- 
tinues in  office  or  not,  is,  in  ordinary  circumstances,  and  in  the  ab- 
sence of  statutory  provisions  to  the  contrary,  the  proper  person  to 
make  the  conveyance.  *  *  *  When  the  term  of  the  officer  who 
made  the  sale  terminates,  his  power  to  make  the  conveyance  continues. 
In  fact,  unless  the  new  sheriff  is  specially  authorized  by  statute,  he 
seems  to  have  no  authority  whatever  to  make  a  conveyance  based  on  a 
sale  made  by  his  predecessor." 

We  are  of  opinion  that  the  deed  made  by  the  retiring  sheriff,  und_er 
our  statute,  was  valid.  If  this  is  so,  it  will  be  unnecessary  to  de- 
termine whether  the  deed  made  by  his  successor  in  office  is  good  or 
not.  In  any  event,  under  the  section  of  the  statute  quoted,  by  one 
deed  or  the  other,  the  title  acquired  under  the  redemption  sale  passed 
to  the  grantee  in  said  deeds.  The  plaintiffs  claimed  an  estate  in  fee  in 
the  land  in  controversy,  with  a  present  right  of  possession.  Their 
father  having  a  life-estate  in  the  property,  which  has  passed  by  virtue 
of  the  foreclosure  sale,  the  redemption  and  sale  thereunder,  and  the 
deeds  in  pursuance  thereof  to  the  defendant,  they  are  not  entitled 
to  recover  of  the  defendant  the  possession  of  said  lands  during  the 
continuance  of  such  estate.  Until  the  termination  of  that  life-estate 
by  the  death  of  the  life-tenant,  their  right  to  a  recovery  must  be  post- 
poned. 


EQUITABLE   ESTATES  69 

Some  questions  are  raised  as  to  the  effect  of  the  proceedings  be- 
fore mentioned  upon  the  fee  to  the  land,  which  is  not  now  before  us 
for  consideration,  and  no  adjudication  is  made  in  respect  thereof. 
The  judgment  of  the  circuit  court  will  be  affirmed.* 


I.  Equitable  Estates 


McTIGUE  V.  McTIGUE. 
(Supreme  Court  of  Missouri,  Division  No.  1,  1893.    116  Mo.  136,  22  S.  W.  501.) 

Appeal  from  St.  Louis  circuit  court;   D.  D.  Fisher,  Judge. 

Ejectment  by  Mamie  McTigue,  by  her  next  friend,  James  Hal- 
lor5n7  against  John  McTigue.  Judgment  for  plaintiff.  Defendant 
appeals.     Affirmed. 

Brace;,  J.  T'lTis  is  an  action  in  ejectment  to  recover  possession  of 
a  lot  in  the  city  of  St.  Louis,  in  which  the  plaintiff  had  judgment, 
and  the  defendant  appeals. 

Both  parties  claim  title  under  Hannah  McTigue,  deceased;  the 
plaintiff  being  the  only  child  and  heir  of  the  said  Hannah,  who  died 
intestate;  and  the  defendant  the  surviving  husband  of  the  said  Han- 
nah, and  the  father  of  the  plaintiff.  The  title  of  the  said  Hannah 
was  acquired  by  the  following  deed:  "This  deed,  made  and  entered 
into  this  12th  day  of  January,  1876,  by  and  between  Adolphus  Meier, 
(widower,)  of  the  city  of  St.  Louis,  state  of  Missouri,  party  of  the 
first  part,  and  James  Halloran,  of  the  same  place,  party  of  the  second 
part,  and  Hannah  McTigue,  wife  of  John  McTigue,  party  of  the 
third  part,  witnesseth :  That  the  said  party  of  the  first  part,  in  con- 
sideration of  the  sum  of  seven  hundred  dollars  to  him  in  hand  paid 
by  said  party  of  the  third  part,  the  receipt  of  which  is  hereby  ac- 
knowledged, and  the  further  sum  of  one  dollar  to  him  paid  by  the 
said  party  of  the  second  part,  the  receipt  of  which  is  hereby  also 
acknowledged,  do  by  these  presents,  grant,  bargain,  and  sell  unto  the 
said  party  of  the  second  part  the  following  described  lot  or  parcel  of 
ground  being  and  laying  in  the  county  of  St.  Louis,  state  of  Mis- 
souri, to  wit :    Lot  numbered  fourteen,  in  block  No.  7,  Adolphus  Mei- 

5  Although,  under  the  Illinois  statute,  in  the  foregoing  case,  it  was  held  that 
the  estate  of  curtesy  initiate  is  not  abolished,  it  is  generally  held,  however,; 
that  the  effect  of  the  married  women's  acts  is  to  abolish  curtesy  initiate  in 
the  property  of  the  wife  acquired  after  the  passage  of  such  statutes.  See 
Luntz  V.  Greve,  102  Ind.  173,  26  N.  E.  128  (1885);  Hill  v.  Chambers,  30  Mich. 
422  (1874);  Hill  v.  Nash,  73  Miss.  849,  19  South.  707  (1896);  Williams  v.  Cas- 
ualty Co.,  150  N.  C.  597,  64  S.  E.  510  (1909).  Under  the  Missouri  statute,  how- 
ever, it  is  held  that  the  husband  is  not  deprived  of  his  curtesy  initiate,  the 
effect  of  the  statute  being  only  to  take  away  the  husband's  right  to  possession 
and  usufruct  during  the  wife's  ilfe.  Donovan  v.  Griffith,  215  Mo.  149,  114  S. 
W.  G21,  20  L.  R.  A.  (N.  S.)  825,  128  Am.  St.  Rep.  458,  15  Ann.  Cas.  724  (1908). 


TO  LIFE    ESTATES    ARISING    FROM    MARRIAGE 

er's  First  addition  to  the  city  of  St.  Louis,  a  plat  of  which  is  on  file 
in  the  office  of  the  recorder  of  deeds  for  St.  Louis  county,  said  lot 
having  a  front  on  the  south  line  of  Cozens  street  of  twenty-five  feet, 
by  a  depth  of  one  hundred  and  twenty-three  feet,  to  an  alley  of 
fifteen  feet  wide;  to  have  and  to  hold  the  same,  with  all  the  rights, 
privileges,  and  appurtenances  thereto  belonging  or  in  any  wise  apper- 
taining, unto  him,  the  said  party  of  the  second  part,  his  heirs  and 
assigns  forever;  in  trust,  however,  to  and  for  the  sole  and  separate 
use,  benefit,  and  behoof  of  the  said  Hannah  McTigue.  And  the  said 
James  Halloran,  party  of  the  second  part,  hereby  covenants  and 
agrees  to  and  with  the  said  Hannah  McTigue  that  he  will  suffer  and 
permit  her,  without  let  or  molestation,  to  have,  hold,  use,  occupy, 
and  enjoy  the  aforesaid  premises,  with  all  the  rents,  issues,  profits, 
and  proceeds  arising  therefrom,  whether  from  sale  or  lease,  for  her 
own  sole  use  and  benefit,  separate  and  apart  from  her  said  husband, 
and  wholly  free  from  his  control  and  interference,  debts,  and  liabil- 
ities, curtesy,  and  all  other  interests  whatsoever,  and  that  he  will  at 
any  time  and  all  times  hereafter,  at  the  request  and  direction  of  said 
Hannah  McTigue,  expressed  in  writing,  signed  by  her  or  by  her  au- 
thority, bargain,  sell,  mortgage,  convey,  lease,  rent,  convey  by  deed 
of  trust  for  any  purpose,  or  otherwise  dispose  of  said  premises,  or 
any  part  thereof,  to  do  which  full  power  is  hereby  given,  and  will 
pay  over  the  rents,  issues,  profits,  and  proceeds  thereof  to  her,  the 
said  Hannah  McTigue,  and  that  he  will,  at  the  death  of  said  Hannah 
McTigue,  convey  or  dispose  of  the  said  premises,  or  such  part  thereof 
as  may  then  be  held  by  him  under  this  deed,  and  all  profits  and  pro- 
ceeds thereof,  in  such  manner,  to  such  person  or  persons,  and  at  such 
time  or  times,  as  the  said  Hannah  McTigue  shall  by  her  last  will  and 
testament,  or  any  other  writing  signed  by  her,  or  by  her  authority, 
direct  or  appoint ;  and  the  said  Hannah  McTigue  shall  have  power  at 
any  time  hereafter,  whenever  she  shall  from  any  cause  deem  it  neces- 
sary or  expedient,  by  any  instrument  in  writing  under  her  hand  and 
seal  and  by  her  acknowledged,  to  nominate  and  appoint  a  trustee  or 
trustees  in  the  place  and  stead  of  the  party  of  the  second  part  above 
named,  which  trustee  or  trustees,  or  the  survivors  of  them,  or  the 
heirs  of  such  survivors,  shall  hold  the  said  real  estate  upon  the  same 
trust  as  above  recited ;  and  upon  the  nomination  and  appointment  of 
such  new  trustees  the  estate  in  trust  hereby  vested  in  said  party  of 
the  second  part  shall  thereby  be  fully  transferred  and  vested  in  the 
trustee  or  trustees  so  appointed  by  the  said  Hannah  McTigue.  And 
the  said  Adolphus  Meier  hereby  covenants  to  warrant  and  defend 
the  title  to  the  said  real  estate  against  the  lawful  claims  of  all  per- 
sons whomsoever,  except  all  taxes,  special  or  general,  for  the  year 
1876;  and  the  said  party  of  the  second  part  covenants  faithfully  to 
perform  and  fulfill  the  trust  herein  created.    In  testimony  whereof  the 


EQUITABLE   ESTATES  71 

said  parties  have  hereunto  set  their  hands  and  seals  the  day  and  year 
first  above  written." 

The  plaintiff,  who  is  a  minor  suing  by  her  next  friend,  the  said 
James  Halloran,  trustee  in  said  deed,  claims  the  right  to  the  posses- 
sion of  the  premises  as  the  only  child  and  heir  at  law  of  her  mother. 
The  defendant  is  in  possession,  and  has  been  ever  since  the  death  of 
his  wife,  and  claims  as  tenant  by  the  curtesy. 

There  can  be  no  doubt  that  by  the  terms  of  the  deed  an  equitable 
estate  of  inheritance  was  vested  in  the  said  Hannah,  which,  upon  her 
death  intestate,  descended  to  the  plaintiff  as  her  only  heir  at  law,  and 
that  such  estate  was  her  separate  equitable  estate.  It  is  also  well- 
settled  law  in  this  state  that  the  husband  is  entitled  to  curtesy  in  the 
equitable  estate  of  the  wife  of  which  she  died  seised,  although  such 
estate  was  limited  to  her  separate  use.  Alexander  v.  Warrance,  17 
Mo.  228;  Baker  v.  Nail,  59  Mo.  265;  Tremmel  v.  Kleiboldt,  75  Mo. 
255 ;  Id.,  6  Mo.  App.  549 ;  Soltan  v.  Soltan,  93  Mo.  307,  6  S.  W.  95 ; 
Spencer  v.  O'Neill,  100  Mo.  49,  12  S.  W.  1054.  Such  seems  to  be  the 
law  generally  in  this  country,  except  in  those  states  where  the  estate 
of  curtesy  has  been  abolished  by  statute.  Tied.  Real  Prop.  (2d  Ed.) 
§  105.  And  while  "it  is  not  competent  at  common  law,  in  the  grant 
to  a  woman  of  an  estate  of  inheritance,  to  exclude  her  husband  from 
his  right  of  curtesy,  a  like  rule  does  not  prevail  in  equity,  where  an 
estate  may  be  so  limited  as  to  give  the  wife  the  inheritance,  and  de- 
prive the  husband  of  curtesy,  if  the  intent  of  the  devisor  or  settlor 
be  express."  1  Washb.  Real  Prop.  (5th  Ed.)  p.  176,  §  15;  4  Amer. 
&  Eng.  Enc.  Law,  p.  965,  note  3. 

As  such  was  the  evident  intention  expressed  in  the  foregoing  deed, 
the  defendant's  curtesy  was  barred,  and  the  judgment  of  the  circuit 
court  so  holding  is  affirmed.    All  concur,  except  Barclay,  J.,  absent.*^ 

«  Accord:  Woodward  v.  Woodward,  148  Mo.  247,  49  S.  W.  1001  (1899) ;  Don- 
ovan V.  Griffith,  215  Mo.  149,  114  S.  W.  621,  20  L.  R.  A.  (N.  S.)  825,  128  Am. 
St.  Rep.  458,  15  Ann.  Cas.  724  (1908).  When  no  provision  is  made  otherwise 
on  the  death  of  the  wife,  the  husband  will  have  curtesy  in  estates  conveyed 
to  her  by  deed,  or  devised  to  her,  for  her  sole  and  separate  use.  Rank  v. 
Rank,  120  Pa.  191,  13  Atl.  827  (1888);  Depue  v.  Miller,  65  W.  Va.  120,  64  S.  E. 
740,  23  L.  R.  A.  (N.  S.)  775  (1909). 


LIFB    ESTATES    ARISING   FROM    MARRIAQB 

IV.  Dower  ^ 

1.  Nature  and  Origin 


CRENSHAW  V.  MOORE. 

(Supreme  Court  of  Tennessee,  1911.     124  Tenn.  528,  137  S.  W.  924,  34  L.  R.  A. 

[N.  S.]  1161,  Ann.  Cas.  1913A,  165.) 

•  Appeal  from  Circuit  Court,  Shelby  County :    J.  P.  Young,  Judge, 

Action  by  Thomas  B.  Crenshaw  and  others  against  Charlotte  Blood 
Moore  and  others.  Decree  for  defendants,  and  plaintiffs  appeal.  Af- 
firmed. 

LansdEn,  J.  William  R.  Moore  died  in  Shelby  county  testate,  and 
his  widow,  Mrs.  Charlotte  Blood  Moore,  dissented  from  his  will. 
Such  proceedings  were  had  in  the  county  court  of  Shelby  county  that 
she  was  assigned  a  year's  support,  to  the  value  of  $20,000,  and  dower 
of  one-third  of  his  real  estate.  The  complainant  brought  this  suit  to 
'collect  from  her  an  inheritance  or  succession  tax  on  both  her  year's 
support  and  dower,  under  the  act  of  1893  (Shannon's  Code,  §  724), 
as  amended  by  chapter  479  of  the  Acts  of  1909. 

The  act  of  1893  imposed  a  tax  upon  "all  estates,  real,  personal,  and 
mixed,  of  every  kind  whatsoever,  situated  within  this  state,  whether 
the  person  or  persons  dying  seised  thereof  be  domiciled  within  or 
out  of  this  state,  passing  from  any  person  who  may  die  seised  or  pos- 
sessed of  such  estates,  either  by  will  or  under  the  intestate  laws  of 
this  state,  or  any  part  of  such  estate  or  estates,  or  interest  therein, 
transferred  by  deed,  grant,  bargain,  gift,  or  sale,  made  in  contempla- 
tion of  death,  or  intended  to  take  effect  in  possession  or  enjoyment 
after  the  death  of  the  grantor  or  bargainor,"  passing  to  collateral 
kindred  of  the  owner;  and  section  20,  c.  479,  Acts  of  1909,  provided 
"that  inheritances  not  taxed  under  the  present  laws  shall  pay  a  tax 
as  follows :  All  inheritances  of  $5,000  and  over,  but  less  than  $20,000, 
a  tax  of  one  per  centum  of  their  value.  All  inheritances  of  $20,000 
and  over,  a  tax  of  one  and  one-fourth  per  centum  of  their  value,  to  be 
collected  by  the  county  court  clerk  of  each  county." 

This  is  a  privilege  tax  imposed  on  the  right  of  acquiring  property 
by  succession.  State  v.  Alston,  94  Tenn.  674,  30  S.  W.  750,  28  L.  R. 
A.  178;  Knox  v.  Emerson,  131  S.  W.  972.  Likewise  it  is  a  special 
tax,  and  the  rule  is  that  laws  imposing  such  taxes  are  to  be  construed 
strictly  against  the  government,  and  favorably  to  the  taxpaver.  Eng- 
lish V.  Crenshaw,  120  Tenn.  531,  110  S.  W.  210,  17  E.  R.  A.  (N.  S.) 
753,  127  Am.  St.  Rep.  1025. 

1  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  53-60. 


DOWEE  73 

The  widow's  year's  support  is  given  her  by  statutory  provision, 
which  is  found  in  sections  4020  and  4021  of  Shannon's  Code.  It  is 
inconceivable  that  the  Legislature  intended  to  levy  the  tax  in  question 
upon  this  bounty  of  the  widow,  given  her  by  the  law  out  of  her 
husband's  personal  estate.  She  does  not  succeed  to  the  husband's 
title  to  the  property  set  apart  to  her  as  a  year's  support,  but  acquires 
it  adversely  to  his  administrator  by  virtue  of  the  statute.  By  the 
act  of  separation  of  the  personalty  assigned  to  her  by  the  commis- 
sioners, and  the  subsequent  confirmation  of  their  report  by  the  court, 
the  title  to  the  specific  property  thus  set  apart  becomes  absolutely 
vested  in  the  widow.  The  obvious  intention  of  the  Legislature  in 
passing  this  statute  was  to  provide  a  temporary  support  for  her  and 
her  family  immediately  on  the  death  of  her  husband.  It  is  an  exten- 
sion by  law  of  her  right  of  support  out  of  the  personal  estate  of  her 
husband  for  one  year  after  his  death,  and  is  founded  in  a  sound 
public  policy,  which  has  for  its  purpose  a  conservation  of  the  family 
upon  the  death  of  the  husband.  The  widow  does  not  succeed  to  the 
right  of  the  husband,  nor  does  she  take  the  property  under  the  intes- 
tate laws  of  this  state.  It  is  a  special  provision  made  for  her  in  the 
law  for  the  support  of  herself  and  her  family.  Bayless  v,  Bayless, 
4  Cold.  363;    Railway  Co.  v.  Kennedy,  90  Tenn.  185,  16  S.  W.  113. 

Nor  do  we  think  that  the  widow's  dower  is  subject  to  this  tax.  By 
the  common  law,  if  a  husband  acquire  an  estate  which  is  subject  to 
descend  to  his  heirs,  the  wife,  at  the  same  time  the  husband  acquires 
his  title,  has  vested  in  her  the  right  of  dower;  and  although  the  hus- 
band aliened  the  estate,  the  wife's  dower  would  attach.  By  the  acts- 
of  1784  and  1823,  carried  into  Shannon's  Code  at  section  4139,  the 
widow  is  dowable  in  one-third  part  of  all  the  lands  of  which  her  hus- 
band died  seised  and  possessed,  or  of  which  he  was  equitable  owner. 
In  all  other  respects,  the  widow's  right  of  dower  in  this  state  is  the 
same  as  it  was  at  common  law.  It  has  the  same  qualities  as  the  com- 
mon-law right  of  dower,  but  its  quantity  was  cut  down  by  the  stat- 
utes referred  to.  This  right  originates  with  the  marriage.  It  is  an 
incumbrance  upon  the  title  of  the  heir  at  law,  and  is  superior  to  the 
claims  of  the  husband's  creditors.  Its  origin  is  so  ancient  that  neither 
Coke  nor  Blackstone  can  trace  it,  and  it  is  as  "widespread  as  the 
Christian  religion  and  enters  into  the  contract  of  marriage  among  all 
Christians." 

"By  a  fiction  of  law,  the  estate  in  dower  relates  to  the  marriage. 
It  is  adjudged  in  Ful wood's  Case,  4  Co.  65,  that  the  widow  shall 
hold  her  dower  discharged  from  all  judgments,  leases,  mortgages,  or 
other  incumbrances  made  by  her  husband  after  the  marriage,  because 
her  title,  being  consummated  by  his  death,  has  relation  to  the  time 
of  the  marriage,  and,  of  course,  is  prior  to  all  other  titles.  She  claims 
by  and  through  her  husband,  has  the  oldest  title,  is  under  him  for 
the  valuable  consideration  of  marriage,  the  best  respected  in  the  law,. 


74  LIFE    ESTATES    ARISING    FROM    MARRIAGE 

and  cannot  be  disturbed  by  any  other  claiming  under  the  husband." 
Combs  V.  Young,  4  Yerg.  226,  26  Am.  Dec.  225. 

The  preamble  to  the  act  of  1784,  which  was  the  first  passed  in  this 
state  reducing  the  quantity  of  the  widow's  dower  estate,  recites,  in 
substance,  that  the  dower  allotted  by  law  in  lands  for  widows,  in  the 
then  unimproved  state  of  the  country,  was  a  very  inadequate  pro- 
vision for  the  support  of  such  widows;  that  it  was  only  just  and 
reasonable  that  those  who,  by  their  prudence,  economy,  and  industry 
had  contributed  to  raise  up  an  estate  to  their  husbands,  should  be 
-i  entitled  to  share  in  it — thus  showing  that  the  Legislature  recognized 
that  the  widow's  dower  under  this  act  had  the  same  origin  and  was 
of  the  same  quality  as  her  dower  existing  at  common  law. 

So,  it  is  seen  that,  whether  it  be  considered  that  the  widow  holds 
her  dower  in  the  nature  of  a  purchaser  from  her  husband  by  virtue 
of  the  marriage  contract,  or  whether  it  be  merely  ^  provision  of  the 
law  made  for  her  benefit,  it  cannot  be  considered  that  her  right  is  in 
succession  to  that  of  her  husband  upon  his  death,  or  that  the  husband 
bestows  it  upon  her  in  contemplation  of  death.  While  it  is  true  that 
her  right  to  dower  is  not  consummated  until  the  death  of  the  hus- 
band, and  that  it  is  carved  out  of  only  such  realty  as  he  owned  at 
his  death,  it  does  not  follow  from  this  premise  that  the  widow  suc- 
ceeds to  his  title  by  the  intestate  laws.  She  derives  it  by  virtue  of  the 
marriage,  and  in  her  right  as  wife  to  be  consummated  in  severalty  to 
her  upon  the  death  of  her  husband.     Boyer  v.  Boyer,  1  Cold.  14. 

The  Supreme  Court  of  Illinois,  in  Billings  v.  People,  189  111.  472, 
59  N.  E.  798,  59  L.  R.  A.  807,  upon  a  construction  of  the  inheritance 
tax  law  of  that  state,  together  with  the  laws  governing  the  descent 
and  distribution  of  the  property  of  persons  dying  intestate,  reached 
a  different  conclusion  from  that  reached  by  us.  The  reasoning  of  that 
court  is  predicated  chiefly  upon  a  construction  of  the  statutes  of  that 
state,  which  are  essentially  dift'erent  from  those  of  this  state.  It  is 
stated,  however,  that,  while  the  husband  cannot  deprive  his  wife  of 
her  inchoate  right  of  dower,  the  state  may,  and  that  she  does  not  hold 
by  contract,  but  holds  by  laws  which  the  state  may  change.  Without 
undertaking  to  meet  all  of  the  arguments  set  forth  in  support  of  this 
very  able  opinion,  we  are  content  to  hold  that,  under  a  proper  con- 
struction of  the  statute  in  question,  the  Legislature  did  not  intend  to 
tax  the  widow's  dower  as  an  inheritance  from  the  estate  of  her  hus- 
band, or  a  succession  to  his  rights  therein.  As  stated  heretofore,  she 
does  not  inherit  from  her  husband,  but  derives  her  right  by  virtue 
of  her  marriage,  which  is  consummated  upon  her  husband's  death, 
and  becomes  an  incumbrance  upon  the  inheritance  of  the  heirs  at  law, 
and  is,  to  that  extent,  an  interest  adverse  to  the  inheritance  from  the 
husband.  For  the  same  reason  she  does  not  succeed  to  the  rights  of 
the  husband.  Hej"  dower  is  intended  for  her  support  and  mainte- 
nance, and  an  intention  to  tax  it  will  not  be  imputed  to  the  Legisla- 


*     ESTATES    SUBJECT   TO    DOWER  75 

ture,  except  where  the  language  employed  makes  it  plainly  impera- 
tive to  do  so. 

Billings  V.  People,  supra,  is  the  only  case  cited  by  counsel  which 
discusses  the  question  at  issue  in  any  way,  and  no  case  is  cited  dis- 
cussing the  liability  of  the  widow's  year's  support  for  the  tax  involved 
here.  But,  upon  reason,  we  are  content  to  hold  that  neither  the  year's 
support  nor  dower  is  subject  to  the  tax.  It  results  that  the  decree 
of  the  court  below  is  affirmed,  with  costs. 


V.  Estates  Subject  to  Dower  * 


CUMMINGS  V.  CUMMINGS. 
(Court  of  Chancery  of  New  Jersey,  1910.    76  N.  J.  Eq.  568,  75  Atl.  210.) 

Partition  by  Thomas  Cummings  and  others  against  John  Cummings 
and  others.     Decree  advised  for  defendants. 

Walker,  V.  C.  This  is  a  suit  for  partition  in  which  the  property 
has  been  sold  and  the  proceeds  remain  to  be  distributed.  The  ques- 
tion before  the  court  is  whether  the  defendant  Mary  Cummings,  wid- 
ow of  Christopher  Cummings,  is  entitled  to  dower  in  the  estate  in  the 
lands  which  descended  to  her  husband  upon  the  death  of  his  father. 
Patrick  Cummings,  the  ancestor,  died  intestate,  seised  of  the  prop- 
erty sold,  leaving  Bridget  Cummings  his  widow  and  certain  children 
and  heirs  at  law,  among  whom  was  Christopher  Cummings.  He 
joined  the  other  children  in  executing  a  quitclaim  deed  to  their  mother, 
the  widow,  by  which  they  released  and  quitclaimed  unto  her  the  lands 
in  question  during  the  term  of  her  natural  life.  The  habendum  clause 
of  the  deed  reads  as  follows :  "To  have  and  to  hold  the  said  premises 
as  before  described,  with  the  appurtenances,  unto  the  said  party  of 
the  second  part,  to  the  sole  and  only  proper  use,  benefit  and  behoof  of 
the  said  party  of  the  second  part,  for  and  during  her  natural  life,  but 
after  her  death  the  same  to  revert  to  the  grantors,  their  heirs  and 
assigns  forever."  After  joining  in  the  deed  mentioned,  Chris*-opher 
Cummings  married  the  defendant  Mary  Cummings  and  died  in  the 
lifetime  of  his  mother,  who  has  since  died.  The  mother  and  son  both 
died  before  the  filing  of  the  bill. 

By  our  act  relative  to  dower  (Gen.  St.  1895,  p.  1275,  §  1),  it  is 
provided :  "That  the  widow  whether  alien  or  not,  of  any  pei-"son 
dying  intestate,  or  otherwise,  shall  be  endowed,  for  the  term  of  her 
natural  life,  of  the  one  full  and  equal  third  part  of  all  lands,  tene- 
ments and  other  real  estate,  whereof  her  husband,  or  any  other  to 
his  use,  was  seised  of  an  estate  of  inheritance,  at  any  time  during  the 
• 

8  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  54. 


76  LIFE    ESTATES    ARISING    FROM    MARRIAGH 

coverture,  to  which  she  shall  not  have  rehnquished  or  released  her 
right  of  dower,  by  deed  executed  and  acknowledged  in  the  manner 
prescribed  by  law  for  that  purpose." 

The  question  is:  Was  Christopher  Cummings  seised  of  an  estate 
of  inheritance  in  the  lands  mentioned  during  the  lifetime  of  his 
mother,  notwithstanding  the  quitclaim  deed  to  her  in  which  he  joined. 
Upon  the  death  of  his  father  he  became  seised  of  an  equal  undivided 
one-fourth  interest  and  estate  of  inheritance  in  fee  in  the  premises, 
and  it  must  now  be  decided  whether  he  divested  himself  of  that  in- 
heritance by  executing  the  quitclaim  deed.  If  so,  that  estate  was  out- 
standing in  his  mother  at  and  during  the  time  of  his  marriage  and 
,  at  the  time  of  his  death.  The  deed  bargains,  sells,  remises,  releases, 
and  quitclaims  the  lands  to  the  grantee,  the  mother,  during  the  term 
of  her  natural  life  only.  The  habendum  is  as  above  set  out.  There 
are  no  words  of  inheritance  in  the  deed. 

Notwithstanding  Christopher's  execution  of  the  quitclaim  deed,  I 
think  he  was  at  all  times  after  the  death  of  his  father  until  his  own 
death  seised  of  a  remainder  in  fee,  which  is  an  estate  of  inheritance, 
in  the  lands,  and,  consequently,  was  so  seised  when  he  married  the 
defendant  Mary  Cummings  after  the  execution  of  that  deed.  The  life 
estate  which  passed  to  the  grantee  in  the  quitclaim  deed  did  not  con- 
vey  a  fee  for  want  of  words  of  inheritance.  Consequently  the  fee 
and  the  inheritance  remained  in  the  grantors.  See  Kearney  v.  Ma- 
comb, 16  N.  J.  Eq.  189;  Trusdell  v.  Lehman,  47  N.  J.  Eq.  218,  20  Atl. 
391 ;  ^lelick  v.  Pidcock,  44  N.  J.  Eq.  525,  15  Atl.  3,  6  Am.  St.  Rep. 
901 ;  Chancellor  v.  Bell,  45  N.  J.  Eq.  538,  17  Atl.  684.  A  deed  to  one 
for  life  does  not  grant  an  estate  in  fee.  Adams  v.  Ross,  30  N.  J.  Law, 
505,  82  Am.  Dec.  237.  "Fee"  originally  signified  the  right  of  the 
tenant  to  the  use  of  the  land  held  of  a  superior,  but  this  meaning 
passed  into  the  modern  signification  of  an  estate  of  inheritance.  2  Bl. 
Com.  106.  "Inheritance"  is  defined  to  be  a  perpetuity  in  lands  to  a 
man  and  his  heirs,  and  the  property  which  is  inherited  is  called  the 
"inheritance."  Bouv.  Law  Diet.  (Rawle's  Revision)  p.  1037.  An  "es- 
tate for  life"  is  a  "freehold  estate"  not  of  inheritance.  Id.  692.  All 
freehold  estates  are  estates  of  inheritance,  except  estates  for  life. 
Id.  693.  An  estate  for  life  created  by  deed  is  not  an  estate  of  in- 
heritance.   Am.  &  Eng.  Ency.  of  Law  (2d  Ed.)  vol.  11,  p.  377. 

The  estate  which  the  widow  acquired  by  the  conveyance  from  the 
heirs  was  an  estate  for  life,  and  was  less  than  an  estate  of  inheritance. 

In  my  opinion  Christopher  Cummings  was  seised  in  fee  of  an  estate 
of  inheritance  at  all  times  during  the  coverture,  and  I  will  advise 
that  his  widow  is  entitled  to  dower  in  that  estate. 


QUARANTINE  77 


VI.  Quarantine  • 


McKAIG  V.  McKAIG. 
(Court  of  Chancery  of  New  Jersey,  1892.    50  N.  J.  Eq.  325,  25  Atl.  181.) 

Bill  for  partition  by  William  H.  McKaig  and  wife  against  Charles 
P.  McKaig  and  others. 

Pitne;y,  V.  C.  The  bill  is  by  a  brother  against  brothers  and  sisters, 
asking  for  partition  of  land  which  descended  to  them  from  their  fa- 
ther, George  McKaig,  deceased.  There  is  no  dispute  as  to  the  shares 
in  which  the  land  is  held,  and  it  clearly  appeared  at  the  hearing  that 
it  could  not  be  divided  without  great  prejudice,  and  so  there  must 
be  a  sale.  The  bill  alleges  that  Charles  P.  McKaig,  one  of  the  de- 
fendants, had  been  in  the  exclusive  possession,  and  had  enjoyed  the 
rents  and  profits,  of  the  premises  from  the  death  of  the  father,  which 
occurred  in  February,  1879,  up  to  the  spring  of  1888,  a  period  of  nine 
years,  and  had  during  that  time  cut  and  carried  away  therefrom,  for 
his  own  use,  a  quantity  of  wood  and  timber;  that  such  possession  by 
Charles  was  had  by  virtue  of  an  agreement  or  understanding  with 
the  other  heirs  that  he  should  pay  an  annual  rent  of  $150  therefor, 
and  that  the  widow  of  George  McKaig  was  entitled,  as  dowress,  to 
one  third  of  the  rents  and  profits;  and  it  prays  that  an  account  may 
be  taken  of  such  rents  and  profits,  and  Charles  be  decreed  to  pay  two 
thirds  of  the  same,  or  that  the  same  may  be  deducted  from  his  share 
of  the  proceeds  of  the  sale  of  the  land.  Charles  McKaig  only  has 
answered,  and  he  denies  that  he  occupied  the  premises  under  any 
agreement  or  understanding  with  his  brothers  and  sisters,  but  alleges, 
in  substance,  that  he  entered  and  kept  possession  as  the  tenant  of  the 
widow,  who  was  entitled  to  such  possession  and  to  the  rents  and  prof- 
its until  her  dower  was  assigned  to  her,  which  was  never  done. 

The  serious  and  important  question  in  the  case  is  whether  the 
widow  of  George  McKaig,  who  died  seised,  was  entitled  to  the  ex- 
clusive possession  and  use  of  the  premises  in  question  under  the  sec- 
ond section  of  the  dower  act,  (Revision,  p.  320,)  which  enacts  that, 
"until  such  dower  be  assigned  to  her,  it  shall  be  lawful  for  the  widow 
to  remain  in  and  hold  and  enjoy  the  mansion  of  her  husband,  and 
the  messuage  or  plantation  thereto  belonging,  without  being  liable  to 
pay  any  rent  for  the  same."  The  facts  are  as  follows:  The  widow, 
Sarah  McKaig,  owned  in  her  own  right  a  farm,  upon  which  was  a 
dwelling  and  the  ordinary  outbuildings,  and  in  and  upon  which  she 
resided  with  her  husband  for  many  years  before  and  at  the  time  of 
his  death.    This  was  their  only  home  and  mansion.     Immediately  ad- 

»  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  55. 


78  LIFE    ESTATES    ARISING    FROM    MARRIAGE 

joining  this  farm  of  the  wife — the  dividing  line  running  near  the 
buildings — were  situate  the  lands  in  question,  belonging  to  the  hus- 
band. They  comprised  plow,  meadow,  and  wood  land,  the  proportion 
of  plow  land  being  small,  and  containing  148  acres  in  three  parcels 
of  98,  33,  and  17  acres,  respectively,  of  which,  however,  only  the 
larger  one  adjoined  the  wife's  farm.  The  husband  worked  and  used 
these  lands  in  common  with  his  wife's  lands,  making  no  distinction. 
There  was  no  dwelling  or  other  buildings  upon  them. 

The  question  is,  was  the  widow  entitled  to  quarantine  in  them  ?  I 
can  find  no  judicial  expression  or  decision  on  the  point.  The  industry 
of  counsel  was  unable  to  cite  any.  Nevertheless,  I  think  the  ques- 
tion reasonably  free  from  doubt.  There  is  here  no  "mansion  house 
of  the  husband,"  and  without  it  I  am  unable  to  perceive  how  there 
can  be  any  statutory  quarantine.  It  is  the  messuage  or  plantation 
belonging  "thereto," — that  is,  to  the  mansion  house  of  the  husband, — 
of  which  the  widow  is  given  the  exclusive  right  until  her  dower  is 
assigned.  The  statute  does  not  give  her  such  right  in  the  messuage 
and  plantation  of  her  husband  belonging  to  and  used  with  her  own 
mansion.  The  words  "belonging  to,"  as  here  used,  clearly  indicate 
uniformity  of  title,  as  well  as  contiguity  of  location  and  community 
of  use.  The  right  given  by  this  enactment  is  greater  than  that  en- 
joyed at  the  common  law.  It  is  not  a  declaration  of  what  the  law 
was,  but  a  decided  change  in  it;  and,  while  our  courts  have  mani- 
fested a  disposition  to  construe  this  section  favorably  towards  the 
widow,  I  can  find  in  such  disposition  no  warrant  for  changing  what 
seems  to  me  to  be  the  plain  meaning  of  the  language  used.  I^hink 
the  widow  was  not  entitled  to  the  exclusive  use  of  these  lands,  and 
hence  that  the  son,  who  was  in  possession,  must  account  for  two 
thirds  of  the  rents  and  profits. 

With  regard  to  the  amount  of  the  rents  and  profits,  the  proof  shows 
that  the  defendant  Charles  moved  into  the  mansion  house  with  his 
mother  immediately  after  his  father's  death.  His, mother  was  far 
advanced  in  years,  and  infirm,  and  was,  besides,  at  the  time  quite  iU 
from  some  temporary  disorder,  from  which,  however,  she  so  far  re- 
covered as  to  live  eight  or  nine  years.  The  complainant  and  his 
brothers  and  sisters  other  than  Charles  understood  and  supposed,  and 
there  was  evidence  tending  to  show,  that  Charles  entered  under  an 
agreement  and  understanding  that  he  was  to  pay  rent  at  the  rate  of 
$150  per  year  for  the  whole  farm,  including  both  the  part  belonging 
to  his  mother  and  that  belonging  to  his  father,  and  that  the  same 
should  be  applied  to  the  support  of  his  mother  during  her  life;  in 
other  words,  that  he  was  to  support  his  mother  for  the  use  of  both 
farms,  and  his  brothers  and  sisters  supposed  that  this  was  the  ar- 
rangement until  after  their  mother's  death,  when,  to  their  surprise, 
Charles  made  a  claim  against  her  estate  for  a  large  sum  ($1,314)  for 
her  support  and  maintenance  from  her  husband's  death,  and  this  claim, 


DOWER — HOW   BARRED  79 

after  litigation  in  the  orphans'  court,  was  sustained,  and  Charles 
received  payment  therefor  without  any  allowance  for  the  use  of  either 
farm.  This  result  could  only  have  been  arrived  at  on  the  ground  that 
the  arrangement  and  understanding  upon  which  the  other  heirs  sup- 
posed that  Charles  was  occupying  these  premises  had  no  legal  exist- 
ence, and  the  heirs  are  therefore  free  to  demand  an  account  of  the 
rents  and  profits  in  this  suit. 

Much  evidence  was  given  as  to  the  annual  value  of  the  land  here 
involved.  It  would  be  profitless  to  discuss  it.  The  amount  involved 
is  trifling,  and  I  will  simply  state  the  result  at  which  I  have  arrived. 
I  find  the  value  of  the  use  of  the  land  here  in  question  to  be  $36  a 
year  over  and  above  taxes,  and  the  defendant  must  account  for  two 
thirds  of  that  sum,  or  $24  a  year  for  nine  years,  making  $216.  The 
wood  cut  by  him  I  find  to  be  worth  $25.  He  should  pay  interest  on 
these  sums  from  April  1,  1888.  The  defendants  did  not  set  up  the 
statute  of  limitations.  I  think  the  defendants,  other  than  the  com- 
plainant, though  they  have  not  answered  or  filed  cross  bills,  are  en- 
titled to  the  benefit  of  this  adjudication,  although,  strictly  speaking, 
made  only  upon  complainant's  prayer.  The  practice  in  partition  cases 
does  not  require  that  each  party  should  assert  his  rights  by  a  separate 
pleading.  To  require  them  to  do  so  would  greatly  increase  the  cost 
of  the  proceedings. 


VII.  Incidents  of  Dower  ^^ 


See  Higgins  Oil  &  Fuel  Co.  v.  Snow,  ante,  p.  10. 


VIII.  Dower— How  Barred  *»^ 
1.  Divorce 


VAN  CLEAF  v.  BURNS.^* 

(Court  of  Appeals  of  New  York,  Second  Division,  1890.    118  N.  Y.  549,  23  N. 

E.  881,   16  Am.   St.   Rep.  782.) 

Appeal  from  supreme  court,  general  term,  second  department,  aflfirm- 
ing  a  judgment  entered  upon  the  decision  of  the  court  at  special  term. 

The  plaintiff  brought  this  action  to  recover  dower  in  certain  lands 
situate  in  the  city  of  Brooklyn,  of  which  one  David  Van  Cleaf,  deceas- 

10  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  58. 

11  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  59. 

12  Reversing  43  Hun,  461. 


80  LIFE    ESTATES    ARISING    FROM   MARRIAGE 

ed,  was  seised  while  he  was  her  husband.  She  alleged  in  her  complaint 
that  she  was  married  to  said  Van  Cleaf  on  the  6th  of  July,  1875,  and 
that  lie'died  November  12,  1884;  that  during  said  period  he  was  seised 
and  possessed  of  the  premises  in  question,  and  that  the  defendants  are 
in  possession  thereof,  claiming  to  own  the  same.  Without  denying  any 
of  said  allegations,  the  defendant  Catherine  Burns  answered,  alleging 
that  on  the  9th  of  April,  1881,  said  David  Van  Cleaf,  who  was  then  a 
resident  of  the  state  of  Illinois,  was  duly  divorced  from  the  plaintiff,  on 
account  of  her  misconduct,  by  the  judgment  of  a  court  in  that  state 
which  had  jurisdiction  of  the  subject-matter  and  of  the  parties. 

The  trial  court  found  the  following  facts :  "That  in  an  action  in  the 
circuit  court  of  Cook  county,  111.,  in  which  David  Van  Cleaf  was  plain- 
tiff, and  said  Mary  B,  Van  Cleaf  was  defendant,  brought  for  a  divorce 
and  dissolution  of  the  marriage  for  the  cause  and  ground  that  said 
Mary  B.  Van  Cleaf  had  willfully  deserted  and  absented  herself  from 
said  David  Van  Cleaf,  her  husband,  without  any  reasonable  cause,  for 
the  space  of  more  than  two  years  before  the  commencement  of  such 
action,  which  by  the  laws  of  Illinois  was  a  ground  for  absolute  divorce 
and  dissolution  of  the  bond  of  marriage,  such  proceedings  were  had 
that  on  April  9,  1881,  judgment  was  granted  and  perfected  therein  in 
favor  of  said  David  Van  Cleaf  against  said  Mary  B.  Van  Cleaf,  dis- 
solving the  bond  of -marriage  between  them  for  the  cause  and  ground 
aforesaid,  which  cause  and  ground  was  by  said  judgment  adjudged  to 
exist.  That  said  court,  in  pronouncing  said  judgment,  had  jurisdic- 
tion of  the  subject-matter  of  the  action  and  judgment,  and  of  the  par- 
ties thereto.  That  said  David  Van  Cleaf  was  at  the  time  of  said  action 
and  judgment  domiciled  in  Chicago,  in  the  state  of  Illinois;  and  said 
Mary  B.  Van  Cleaf,  on  October  18,  1880,  appeared  in  said  action  in 
person,  and  filed  her  answer  in  writing  to  the  complaint,  having  first 
received  notice  of  the  commencement  of  the  suit  by  the  service  on  her 
in  this  state  of  the  summons  and  complaint.  That  the  plaintiff  was 
during  all  the  time  above  mentioned  a  resident  of  the  city  of  Brooklyn, 
in  the  state  of  New  York."  The  court  found,  as  a  conclusion  of  law, 
that  the  complaint  should  be  dismissed  upon  the  merits,  with  costs,  to 
-which  the  plaintiff  duly  excepted. 

The  only  proof  given  by  either  party  on  the  trial  was  a  stipulation 
admitting  the  facts  as  found.  The  case  states  that  no  other  facts  ap- 
peared ;  and  the  parties  stipulate,  for  the  purpose  of  any  appeal,  that 
David  Van  Cleaf  was  seised  in  fee-simple  of  the  premises  in  question 
between  the  date  of  his  marriage  to  the  plaintiff  and  the  date  of  said 
divorce,  and  that  such  admission  shall  have  the  same  effect  as  though 
found  by  the  trial  judge  upon  proper  evidence. 

Vaxn,  J.,  (after  stating  the  facts  as  above.)  Our  Revised  Stat- 
utes provide  that  "a  widow  shall  be  endowed  of  the  third  part  of  ail 
the  lands  whereof  her  husband  was  seised  of  an  estate  of  inheritance 
at  any  time  during  the  marriage,"  (1  Rev.  St.  p.  740,  §  1 ;)  but  that, 
"in  case  of  divorce  dissolving  the  marriage  contract  for  the  misconduct 


DOWER — HOW   BARRED  81 

of  the  wife,  she  shall  not  be  endowed,"  (Id.  p.  741,  §  8.)  It  is  further 
provided  by  the  Code  of  Civil  Procedure  that,  where  final  judgment  is 
rendered  dissolving  the  marriage  in  an  action  brought  by  the  wife,  her 
inchoate  right  of  dower  in  any  real  property  of  which  her  husband 
then  was,  or  was  theretofore,  seised,  shall  not  be  affected  by  the  judg- 
ment; but  that,  when  the  action  is  brought  by  the  husband,  the  wife 
shall  not  be  entitled  to  dower  in  any  of  his  real  property,  or  to  a  dis- 
tributive share  in  his  personal  property.  Sections  1759,  1760.  These 
provisions  of  the  Code  replaced  a  section  of  the  Revised  Statutes  which 
provided  that  "a.  wife,  being  a  defendant  in  a  suit  for  a  divorce  brought 
by  her  husband,  and  convicted  of  adultery,  shall  not  be  entitled  to  dow- 
er in  her  husband's  real  estate,  or  any  part  thereof,  nor  to  any  distribu- 
tive share  of  his  personal  estate."  3  Rev.  St.  (6th  Ed.)  p.  157,  §  61,  re- 
pealed Laws  1880,  c.  245,  §  1,  subd.  4.  An  absolute  divorce  could  be 
granted  only  on  account  of  adultery,  either  under  the  Revised  Statutes 
or  the  Code.  3  Rev.  St.  (6th  Ed.)  p.  155,  §§  38-42;  Code  Civil  Proc. 
§§  1756,  1761.  According  to  either,  an  action  could  be  brought  to 
annul,  to  dissolve,  or  to  partially  suspend  the  operation  of  the  marriage 
contract.  A  marriage  may  be  annulled  for  causes  existing  before  or  at 
the  time  it  was  entered  into ;  and  the  decree,  in  such  cases,  destroys  the 
conjugal  relation  ab  initio,  and  operates  as  a  sentence  of  nullitv.  Id. 
§§  1742,  1754. 

A  marriage  contract  may  be  dissolved,  and  an  absolute  divorce,  or  a 
divorce  proper,  granted  for  the  single  cause  already  mentioned.  Such 
a  judgment  operates  from  the  date  of  the  decree  by  relieving  the  par- 
ties from  the  obligations  of  the  marriage,  although  the  party  adjudged 
to  be  guilty  is  forbidden  to  remarry  until  the  death  of  the  other.  It 
has  no  retroactive  effect,  except  as  expressly  provided  by  statute. 
Wait  V.  Wait,  4  N.  Y.  95.  An  action  for  a  separation,  which  is  some- 
times called  a  "limited  divorce,"  neither  annuls  nor  dissolves  the  mar- 
riage contract,  but  simply  separates  the  parties  from  bed  and  board, 
either  permanently  or  for  a  limited  time.  Code  Civil  Proc.  §§  1762- 
1767.  Neither  the  nature  nor  effect  of  the  judgment  of  divorce  grant- 
ed by  the  court  in  Illinois  in  favor  of  David  Van  Cleaf  against  the 
plaintiff  appears  in  the  record  before  us,  except  that  the  bond  of  mar- 
riage between  them  is  stated  to  have  been  dissolved  upon  the  ground 
that  she  had  willfully  deserted  and  absented  herself  from  her  husband, 
without  reasonable  cause,  for  the  space  of  more  than  two  years  prior  to 
the  commencement  of  the  action.  It  does  not  even  appear  that  the  de- 
cree would  have  the  effect  upon  her  right  to  dower  in  the  state  where 
it  was  rendered  that  is  claimed  for  it  here.  Apparently,  it  simply  dis- 
solved the  marriage  relation ;  and  whether  it  had  any  effect,  by  retro- 
action, upon  property  rights  existing  at  its  date,  is  not  disclosed.  A 
judgment  of  a  sister  state  can  have  no  greater  effect  here  than  belongs 
to  it  in  the  state  where  it  was  rendered.  Suydam  v.  Barber,  18  N.  Y. 
468,  75  Am.  Dec.  254.  There  is  no  presumption  that  the  statutes  of  the 
Burd.Cas.Real  Prop. — 6 


82  LIFE    ESTATES    ARISING    FROM    MARRIAGE 

State  of  Illinois  agree  with  our  own  in  relation  to  this  subject.  Cutler 
V.  Wright,  22  N.  Y.  472 ;  McCulloch  v.  Norwood,  58  N.  Y.  562.  If 
they  do,  the  fact  should  have  been  proved,  as  our  courts  will  not  take 
judicial  notice  of  the  statutes  of  another  state.  Hosford  v.  Nichols,  1 
Paige,  220 ;  Chanoine  v.  Fowler,  3  Wend.  173 ;  Sheldon  v.  Hopkins,  7 
Wend.  435 ;  Whart.  Ev.  §§  288,  300.  Adequate  force  can  be  given  to 
the  Illinois  judgment,  by  recognizing  its  effect  upon  the  status  of  the 
parties  thereto,  without  giving  it  the  effect  contended  for  by  the  re- 
spondent. Barrett  v.  Faihng,  HI  U.  S.  523,  4  Sup.  Ct.  598,  28  L.  Ed. 
505 ;   Mansfield  v.  Mclntyre,  10  Ohio,  27. 

The  judgment  appealed  from,  therefore,  can  be  affirmed  only  upon 
the  ground  that  a  decree  dissolving  the  marriage  tie,  rendered  in  anoth- 
er state,  for  a  cause  not  regarded  as  adequate  by  our  law,  has  the  same 
effect  upon  dower  rights  in  this  state  as  if  it  had  been  rendered  by  our 
own  courts  adjudging  the  party  proceeded  against  guilty  of  adultery. 
This  would  involve,  as  a  result,  that  the  expression,  "misconduct  of  the 
wife,"  as  used  in  the  Revised  Statutes,  means  any  misconduct,  however 
trifling,  that  by  the  law  of  any  state  is  a  ground  for  divorce.  Thus  it 
might  happen  that  a  wife  who  resided  in  this  state,  and  lived  in  strict 
obedience  to  its  laws,  might  be  deprived  of  her  right  to  dower  in  lands 
in  this  state  by  a  foreign  judgment  of  divorce,  based  upon  an  act  that 
was  not  a  violation  of  any  law  of  the  state  of  her  residence.  It  is  im- 
portant, therefore,  to  determine  whether  the  provision  that  a  wife  shall 
not  be  endowed  in  case  of  divorce  dissolving  the  marriage  contract  for 
her  misconduct  refers  only  to  that  act  which  is  misconduct  authorizing 
a  divorce  in  this  state,  or  to  any  act  which  may  be  termed  "miscon- 
duct," and  converted  into  a  cause  of  divorce  by  the  legislature  of  any 
state.  In  Schiffer  v.  Pruden,  64  N.  Y,  47,  49,  this  court,  referring  to 
said  provision  of  the  Revised  Statutes,  said  that  "the  misconduct  there 
spoken  of  must  be  her  adultery;  for  there  is  no  other  cause  for  a  di- 
vorce dissolving  the  marriage  contract."  It  had  before  said,  in  Pitts 
V.  Pitts,  52  N.  Y.  593,  that  "a  wife  can  only  be  barred  of  dower  by  a 
conviction  of  adultery  in  an  action  for  divorce,  and  by  the  judgment  of 
the  court  in  such  action."  While  these  remarks  were  not  essential  to 
the  decision  of  the  cases  then  under  consideration,  they  suggest  the 
real  meaning  and  proper  application  of  the  word  "misconduct,"  as 
used  in  the  Revised  Statutes,  with  reference  to  its  effect  upon  dower. 
When  the  legislature  said,  in  the  chapter  relating  to  dower,  that  a  wife 
should  not  be  endowed  when  divorced  for  her  own  misconduct ;  and, 
in  the  chapter  relating  to  divorce,  that  she  should  not  be  entitled  to 
dower  when  convicted  of  adultery, — the  sole  ground  for  a  divorce, — 
we  think  that,  by  misconduct,  adultery  only  was  meant,  or  that  kind  of 
misconduct  which  our  laws  recognize  as  sufficient  to  authorize  a  di- 
vorce. The  sections  relating  to  dower,  and  to  the  effect  of  divorce  up- 
on dower,  are  in  pari  materia,  and  should  be  construed  together ;  and, 
when  thus  construed,  they  lead  to  the  result  already  indicated.  Beebe 
v.  Estabrook,  79  N.  Y.  246,  252. 


DOWER — HOW   BARRED  83 

The  repeal  of  section  48,  which  provided  that  the  wife,  if  convicted 
of  adultery,  should  not  be  entitled  to  dower,  has  not  changed  the  re- 
sult, as  sections  1759  and  1760  of  the  Code  have  been  substituted,  leav- 
ing the  law  unchanged.  They  enact,  in  effect,  that,  when  judgment  is 
rendered  at  the  suit  of  the  husband  dissolving  the  marriage  for  the 
adultery  of  the  wife,  she  shall  not  be  entitled  to  dower  in  any  of  his 
real  property.  There  is  no  change  in  meaning ;  and  the  slight  change 
in  language,  as  the  commissioners  of  revision  reported,  was  to  consoli- 
date and  harmonize  the  new  statute  with  the  existing  system  of  proce- 
dure. Throop,  Anno.  Code,  §  1760,  note.  The  repealed  section  was 
pronounced  in  the  Ensign  Case,  103  N.  Y.  284,  8  N.  E.  544,  57  Am. 
Rep.  717,  "an  unnecessary  and  superfluous  provision  as  respects  dow- 
er." It  was  also  held  in  that  case  that  while  the  relation  of  husband 
and  wife,  both  actual  and  legal,  is  utterly  destroyed  by  a  judgment  of 
divorce  so  that  no  future  rights  can  thereafter  arise  from  it,  still  exist- 
ing rights,  already  vested,  are  not  thereby  forfeited,  and  are  taken 
away  only  by  special  enactment  as  a  punishment  for  wrong.  It  follows 
that  depriving  a  woman  of  her  right  to  dower  is  a  punishment  for  a 
wrongful  act  perpetrated  by  her.  Is  it  probable  that  the  legislature 
intended  to  punish  as  a  wrong  that  which  it  had  not  declared  to  be 
wrong  ?  If  a  divorce  granted  in  another  state  for  willful  desertion  re- 
lates back  so  as  to  affect,  by  way  of  punishment,  property  rights  pre- 
viously acquired,  must  not  a  divorce  for  incompatibility  of  temper,  or 
any  other  frivolous  reason,  be  attended  with  the  same  result?  Does 
the  penalty  inflicted  upon  the  guilty  party  to  a  divorce  granted  in  this 
state  for  a  single  and  special  reason  attach  to  any  judgment  for  di- 
vorce, granted  in  any  state,  for  any  cause  whatever,  including,  as  is 
said  to  be  the  law  in  one  state,  the  mere  discretion  of  the  court  ? 

Our  conclusion  is  that  as  nothing  except  adultery  is,  in  this  state, 
regarded  as  misconduct  with  reference  to  the  subject  of  absolute  di- 
vorce, no  other  misconduct  is  here  permitted  to  deprive  a  wife  of 
dower,  even  if  it  is  the  basis  of  a  judgment  of  divorce  lawfully  ren- 
dered in  another  state,  unless  it  expressly  appears  that  such  judgment 
has  that  effect  in  the  jurisdiction  where  it  was  rendered,  and  as  to  that 
we  express  no  opinion.  The  judgment  should  be  reversed,  and  a  new 
trial  granted,  with  costs  to  abide  event.  All  concur,  except  FollEtt, 
C.  J.,  dissenting. 


S4  LIFB    ESTATES    ARISING    FROM    MARRIAOB 

2.  Loss  OF  Husband's  Seisin  (Judicial  Sale) 


BUTLER  V.  FITZGERALD. 

(Supreme  Court  of  Nebraska,  1895.    43  Neb.  192,  61  N.  W.  640,  27  L.  R.  A. 

252,  47  Am.  St.  Rep.  741.) 

Appeal  from  district  court,  Lancaster  county;   Tibbets,  Judge. 

Action  by  Lydia  Butler  against  John  Fitzgerald  and  others  to  re- 
cover dower  in  land.  Judgment  was  rendered  for  plaintiff,  and  de- 
fendants appeal.     Affirmed. 

Ragan,  C.^'  It  appears,  from  a  stipulation  of  the  parties  to  this  suit 
in  the  record,  that  the  material  facts  in  this  case  are:  That  Lydia 
Butler  and  David  Butler  were  husband  and  wife,  and  resided,  as 
such,  in  this  state  from  the  year  1866  until  David  Butler's  death,  in 
May,  1891,  and  that  Lydia  Butler  still  resides  in  this  state;  that  on 
the  6th  of  October,  1879,  David  Butler  was  the  owner  in  fee  simple 
of  certain  real  estate,  which  on  said  day  was  levied  upon  by  an 
execution  issued  on  a  judgment  obtained  against  David  Butler  alone, 
and  sold  to  satisfy  such  judgment;  that  John  Fitzgerald  became  the 
purchaser  of  said  real  estate  at  said  execution  sale,  and  said  sale  was 
followed  by  a  judicial  confirmation  and  conveyance  to  him  of  said 
real  estate.  Lydia  Butler  brought  this  suit  to  the  district  court  of 
Lancaster  county  against  John  Fitzgerald  and  others,  to  recover  her 
dower  in  said  real  estate,  which  had  been  sold  and  conveyed  under  ex- 
ecution as  aforesaid.  She  had  judgment,  and  John  Fitzgerald  and 
others  interested  in  said  real  estate  have  appealed.  The  stipulation  of 
facts  referred  to,  and  on  which  the  case  was  tried  in  the  court  below, 
provides  that,  if  the  court  shall  find  that  Lydia  Butler  was  entitled  to 
dower  in  said  real  estate,  the  court  shall  ascertain  the  value  of  such 
dower  interest,  and  render  judgment  therefor  in  her  favor;  that 
said  Lydia  Butler  agrees  to  accept  a  gross  sum  of  money  in  lieu 
of  said  dower. 

The  two  important  questions  presented  by  this  appeal  are: 

L  Does  the  sale  of  the  real  estate  of  a  husband  under  execution, 
on  a  "judgment  against  him  alone, — followed  by  judicial  confirmation 
and  conveyance, — extinguish  the  dower  interest  of  the  widow  of  said 
husband  in  said  real  estate?  Blackstone  defines  "dower"  at  common 
law  thus :  "  'Tenant  in  dower'  is  where  the  husband  of  a  woman  is 
seised  of  an  estate  of  inheritance  and  dies.  In  this  case  the  wife 
shall  have  a  third  part  of  all  the  lands  and  tenements  whereof  he  was 
seised  at  any  time  during  the  coverture,  to  hold  for  herself  for  the 
term  of  her  natural  life."  And  he  further  says  that  the  object  of  the 
common  law  in  giving  a  widow  dower  in  the  estate  of  her  husband 
was  "to  provide  for  the  sustenance  of  the  widow,  and  for  tlie  nurture 

18  I'art  of  tbe  opiuion  is  omitted. 


DOWER — HOW   BARRED  85 

and  education  of  the  younger  children."  Bl.  Comm.  bk.  2,  pp.  128, 
129.  Section  1,  c.  23,  p.  401,  Comp.  St.  1893,  provides:  "The  widow 
of  every  deceased  person  shall  be  entitled  to  dower  or  the  use,  during 
her  natural  life,  of  one-third  part  of  all  the  lands  whereof  her  husband 
was  seised,  of  all  (an)  estate  of  inheritance  at  any  time  during  the 
marriage  unless  she  is  lawfully  barred  thereof."  It  will  be  seen  that 
our  statute  in  the  matter  of  a  widow's  dower  follows  the  rule  of  the 
common  law,  or,  more  properly  speaking,  the  statute  is  but  declar- 
atory of  the  common  law.  In  Scribner  on  Dower  (volume  2,  p.  2,  § 
2)  it  is  said:  "It  will  be  observed  that  this  estate  [dower]  arises 
solely  by  operation  of  law,  and  not  by  force  of  any  contract,  ex- 
pressed or  implied,  between  the  parties.  It  is  the  silent  effect  of  the 
relation  entered  into  by  them,  not  as  in  itself  incidental  to  that  re- 
lation or  as  implied  by  the  marriage  contract,  but  merely  as  that  con- 
tract calls  into  operation  the  positive  institutions  of  the  law."  And 
it  was  expressly  held  in  Shearer  v.  Ranger,  22  Pick.  (Mass.)  447,  that 
"an  inchoate  right  of  dower  is  an  existing  incumbrance  on  land,  with- 
in the  meaning  of  the  covenant  against  incumbrances."  .  However  this 
may  be,  it  is  clear  that,  "when  lawful  marriage  of  a  man  and  woman 
and  the  ownership  of  real  estate  by  the  former  Ironcur,  an  inchoate 
dower  right  attaches,  in  the  nature  of  a  charge  or  incumbrance  upon 
the  real  estate  of  the  husband." 

Under  certain  conditions,  unnecessary  to  notice  here,  the  dower  right 
may  never  attach ;  but  when  it  has  once  attached  it  remains  and  con- 
tinues a  charge  or  incumbrance  upon  the  real  estate,  unless  released 
by  the  voluntary  act  of  the  wife  or  extinguished  'by  operation  of  law, 
and  is  consummate  upon  the  death  of  the  husband,  and  in  certain 
other  contingencies  not  involved  in  this  case,  provided  for  by  section 
23  of  chapter  25  of  the  Compiled  Statutes,  entitled  "Divorce  and  Ali- 
mony." In  this  case  none  of  the  conditions  existed  which  prevented 
the  inchoate  dower  right  of  Lydia  Butler  from  attaching  to  the  real 
estate  of  her  husband  owned  by  him  at  the  time  of  his  marriage  to 
her,  or  acquired  by  him  thereafter.  The  husband  is  dead ;  and  we 
now  proceed  to  inquire  whether  his  widow,  within  the  meaning  of 
section  1,  c.  23,  quoted  above,  has  been  or  is  "lawfully  barred"  of  a 
dower  interest  in  the  real  estate  in  controversy.  The  rule  of  the  com- 
mon law  as  to  the  effect  of  a  husband's  acts  during  the  coverture, 
on  the  dower  interest  of  his  wife  in  his  real  estate,  is  thus  stated  by 
Scribner  on  Dower  (volume  1,  p.  603,  §  1) :  "After  the  right  of  dower 
has  once  attached,  it  is  not  in  the  power  of  the  husband  alone  to 
defeat  it  by  any  act  in  the  nature  of  an  alienation  or  charge.  It  is 
a  right  attaching  in  law,  which,  although  it  may  never  become  abso- 
lute,— as  if  the  wife  died  in  the  lifetime  of  the  husband, — yet,  from 
the  moment  that  the  facts  of  marriage  and  seisin  concur,  it  is  so 
fixed  on  the  land  as  to  become  a  title  paramount  to  that  of  any  per- 
son claiming  under  the  husband  b}»  subsequent  act.  The  alienation 
of  the  husband,  therefore,  whether  voluntary,  as  by  deed  or  will,  or 


86  LIFE    ESTATES    ARISING    FROM    MARRIAGE 

involuntary,  as  by  bankruptcy  or  otherwise,  will  confer  no  title  on  the 
alienee  as  against  the  wife  in  respect  of  her  dower,  but  she  will  be  en- 
titled to  recover  against  such  alienee  in  the  same  manner  as  she  would 
have  recovered  against  the  heir  of  the  husband  had  the  latter  died 
seised." 

In  the  case  at  bar  the  real  estate  in  controversy  was  not  "aliened" 
by  the  husband,  as  that  phrase  is  ordinarily  understood.  He  was  de- 
prived of  the  title  to  this  real  estate  involuntarily,  and  we  may  pre- 
sume that  the  only  act  of  his  which  led  to  his  being  deprived  of  his 
real  estate  by  the  law  was  his  voluntarily  contracting  the  debt  made 
the  basis  of  the  judgment  under  which  the  real  estate  was  sold.  The 
decisions  of  the  courts  of  last  resort  of  the  states  in  construing  stat- 
utes like  our  own,  and  the  decisions  of  the  courts  of  last  resort  of  the 
states  whose  statutes  do  not  define  dower,  but  follow  the  common- 
law  rule,  sustain  the  proposition  quoted  above  from  Scribner,  as  to 
the  inability  of  a  husband,  by  any  voluntary  act  of  his,  to  bar  his 
wife's  right  of  dower  to  his  real  estate  after  such  right  has  once  at- 
tached, either  directly  or  indirectly. 

In  Pifer  v.  Ward,  8  Blackf.  (Ind.)  251,  it  was  held  that  "if  a  me- 
chanic's lien  accrue  after  the  employer's  marriage,  and  the  employer 
die  after  the  accruing  of  the  lien,  the  right  of  dower  of  the  em- 
ployer's widow  will  be  paramount  to  the  lien."  And  in  Bishop  v. 
Boyle,  9  Ind.  169,  68  Am.  Dec.  615,  it  was  held  that  "the  widow's 
right  of  dower  extends  to  and  includes  a  house  ejected  on  land  of  her 
husband,  and  her  claim  is  superior  to  a  mechanic's  lien  for  which  the 
property  was  sold  under  a  decree  against  the  husband  to  enforce  the 
lien."  The  court  said :  "The  wife's  dower  is  a  favorite  of  the  law. 
not  resting  in  contract  or  resulting  from  the  marriage  relation.  Hers 
is  the  elder  lien.  The  mechanic  bestows  his  labor  with  a  knowledge  of 
her  prior  right  to  the  real  estate,  and  he  knows  that  the  house  he 
is  building,  as  brick  is  added  to  brick  and  nail  after  nail  is  driven, 
becomes  real  estate.  He  may  protect  himself  by  security,  or  not  ven- 
ture. She  is  passive,  and  can  do  nothing.  It  is  for  this  reason  that 
she  is  declared  to  be  a  favorite  of  the  law."  See,  also  Mark  v.  Mur- 
I)hy,  Qd  Ind.  534. 

In  Schaeffer  v.  Weed,  3  Gilman  (111.)  511,  it  was  held  that  "a 
widow's  dower  cannot  be  afifected  by  the  lien  created  by  the  statute  for 
the  benefit  of  mechanics,"  etc.,  "but  she  is  entitled  to  dower  of  all  the 
real  estate  of  which  her  husband  was  seised  during  coverture,  unless 
she  had  released  it  in  the  form  prescribed  by  law."  In  Gove  v.  Gather, 
23  111.  634,  76  Am.  Dec.  711,  it  was  held:  "The  enforcement  of  a 
mechanic's  lien  for  improvements,  made  by  the*  husband  in  his  life- 
time, will  not  cut  off  his  wife's  right  of  dower,  even  to  the  extent  of 
the  value  of  such  improvements."  -See,  also,  Dingman  v.  Dingman,  39 
Ohio  St.  172. 

In  Grady  v.  McCorkle,  57  Mo.  172,  17  Am.  Rep.  676,  William 
Grady  owned  certain  lands,  and  agreed  with  his  son  Leonard  that,  if 


DOWER — HOW    BARRED  87 

the  latter  would  go  on  the  lands  and  improve  them,  he  would  convey 
the  same  to  him  by  way  of  advancement,  and  charge  him  with  their 
value.  Leonard  took  possession  of  the  lands,  and  made  improve- 
ments on  them,  and  occupied  the  lands  until  his  death.  William 
Grady  died  not  having  conveyed  the  lands  to  Leonard.  The  widow 
and  heirs  of  Leonard  Grady  brought  a  suit  against  the  widow  and 
heirs  of  William  Grady  for  specific  performance  of  William  Grady's 
contract,  and  the  court  decreed  a  specific  performance  of  the  con- 
tract. The  widow  of  William  Grady  was  a  party  to  this  suit,  and 
served  with  process,  but  made  no  appearance.  After  this  the  widow 
of  Willfam  Grady  brought  suit  for  her  dower  interest  in  the  lands, 
and  the  court  held :  "The  alienation  of  real  estate  by  the  husband, 
whether  voluntary,  as  by  deed  or  will,  or  involuntary,  as  by  pro- 
ceedings against  him  or  otherwise,  will  confer  no  title  on  the  alienee, 
as  against  the  wife,  in  respect  to  her  dower ;"  and  that  the  suit  for 
specific  performance  of  the  contract  made  by  the  widow's  husband, 
and  the  decree  enforcing  such  contract,  did  not  bar  the  widow's  dower 
rights,  as  they  were  not  drawn  in  question  in  the  specific  performance 
suit;  that  the  decree  in  that  case  had  the  same  effect,  and  no  more, 
than  a  deed  would  have  had  executed  by  William  Grady  alone  at  the 
time  the  decree  was  rendered,  had  he  then  been  living. 

Section  3,  c.  46,  Gen.  St.  Minn,  1878,  provides  that  a  surviving  hus- 
band or  wife  shall  be  entitled  to  and  shall  hold  in  fee  simple  an  un- 
divided one-third  of  all  lands  of  which  the  deceased  was  at  any  time 
during  the  marriage  seised  or  possessed.  A  wife  owned  certain  real 
estate.  A  judgment  was  obtained  against  the  wife,  and  her  lands 
levied  upon  and  sold  to  satisfy  the  judgment.  The  wife  then  died, 
and  the  husband  brought  suit  against  the  purchasers  of  the  real  es- 
tate at  the  execution  sale  to  recover  his  rights  in  said  real  estate ; 
and  in  Dajrton  v.  Corser,  51  Minn.  406,  53  N.  W.  717,  18  L.  R.  A.  80, 
the  supreme  court  of  Minnesota  held  that  "the  inchoate  contingent  in- 
terest of  a  husband  or  wife  in  real  estate  owned  by  the  other,  fixed 
[by  the  statute  just  quoted],  and  commonly  called  the  'dower  right,' 
is  not  divested  by  a  transfer  of  title  from  the  owner  of  the  property 
to  a  purchaser  at  an  execution  sale  founded  upon  a  judgment  against 
such  owner."  The  court  said :  "It  hardly  seems  necessary  to  cite  au- 
thorities to  the  proposition  that  at  common  law  a  wife  could  not  be 
deprived  of  her  dower  rights  in  the  real  estate  of  her  husband  through 
a  sale  upon  execution  on  a  judgment  obtained  against  him  subse- 
quently to  the  marriage."     See,  also,  Barker  v.  Parker,  17  Mass.  564. 

It  is  to  be  remembered  that  the  language  of  our  statute  is  that  the 
widow  shall  have  dower  in  all  the  real  estate  of  which  her  husband 
was  seised  during  the  marriage,  "unless  she  is  lawfully  barred  thereof." 
Keeping  in  view  the  nature  of  a  dower  interest  as  defined  by  the  com- 
mon law,  and  the  reason  and  spirit  of  the  commpn  law  on  the  subject, 
and  the  authorities  just  cited,  we  would  feel  safe  in  saying  that  the 
dower  rights  of  the  appellee  in  this  case  were  not  extinguished  or 


88  LIFE    ESTATES    ARISING    FROM    MARRIAGE 

barred  by  the  sale  on  execution  of  her  husband's  real  estate  during 
his  life,  on  a  judgment  rendered  against  him.  But  our  statute  has  not 
remitted  the  courts  for  guidance  entirely  to  the  common  law,  and 
common-law  decisions  in  respect  of  dower,  for  determining  in  what 
manner  a  wife  or  widow  may  be  lawfully  barred  of  her  dower  rights. 
Sections  12,  13,  15,  c.  23,  Comp.  St.  1893,  provide  in  what  manner 
a  married  woman  may  bar  her  dower  rights  in  the  real  estate  of  her 
husband.  Substantially,  these  provisions  provide  that  a  married  wo- 
man shall  be  deemed  to  have  released  or  waived  her  rights  to  dower 
in  her  husband's  real  estate  only  by  her  voluntary  act  or  contract. 
And  section  43,  c.  IZ,  Comp.  St.  1893,  provides  that  a  married  woman, 
"to  convey  her  right  of  dower  she  must  execute  a  deed  with  or  with- 
out her  husband."  And  section  7  of  said  chapter  23  provides  that 
"when  a  widow  shall  be  entitled  to  dower  out  of  any  lands  which  shall 
have  been  aliened  by  the  husband  in  his  lifetime  *  *  *  that  such 
lands  shall  be  estimated  in  setting  out  the  widow's  dower  according  to 
their  value  at  the  time  when  they  were  so  aliened."  This  statute  is  of 
itself  a  legislative  recognition  of*  the  inability  of  a  husband  to  de- 
prive his  wife  of  her  dower  rights  in  his  real  estate  by  a  direct  or 
indirect  alienation  thereof ;  and  section  477  of  the  Code  of  Civil  Pro- 
cedure provides  that  judgments  shall  be  a  lien  upon  the  lands  of  a 
debtor;  and  section  491a  of  the  Code  provides  that,  when  an  exe- 
cution shall  be  levied  upon  real  estate,  the  sheriff  shall  cause  the  in- 
terest of  the  execution  debtor  in  such  real  estate  to  be  appraised  at 
its  real  value;  and  by  sections  499  and  500  of  the  Code  it  is  pro- 
vided, in  substance,  that  the  sale  of  a  debtor's  real  estate  on  exe- 
cution, and  the  conveyance  of  such  real  estate  to  the  purchaser  thereof 
at  such  sale,  shall  vest  in  such  purchaser  the  interest  which  the  execu- 
tion debtor  had  in  said  real  estate  at  the  time  the  judgment  under 
which  it  was  sold  became  a  lien  thereon.  ^ 

In  the  case  at  bar,  David  Butler  had  the  title  to  the  real  estate  in 
controversy  at  and  before  the  time  it  was  sold  on  execution,  but  that 
title  was  incumbered  or  burdened  with  the  inchoate  dower  interest  of 
his  wife,  the  appellee;  and  when  the  judgment  was  rendered  against 
David  Butler  it  became  a  lien  upon  the  interest  of  David  Butler  in 
said  real  estate,  but  that  lien  was  subject  to  the  inchoate  dower  in- 
terest of  the  wife  therein.  When  this  real  estate  was  sold,  and  the 
sale  confirmed,  and  the  sheriff  executed  a  deed  in  pursuance  thereof, 
he  conveyed  to  Fitzgerald  all  the  interest  that  David  Butler  had  in  this 
real  estate;  and  such  purchaser  took  the  title  to  this  real  estate 
charged  with  the  same  burdens  and  incumbrances  thereon  that  it  was 
charged  with  while  the  title  rested  in  David  Butler, — the  wife's  in- 
choate dower  right.  The  rule  of  caveat  emptor  applies  to  a  purchaser 
of  real  estate  at  a  judicial  sale  thereof  on  execution;  and  the  convey- 
ance made  to  such  a  purchaser  by  the  sheriff  has  no  greater  effect  and 
conveys  no  greater  estate  than  would  a  quitclaim  deed  for  the  premises 
executed  by  the  execution  debtor.    Norton  v.  Trust  Co.,  35  Neb.  466, 


DOWER — HOW    BAERED  89 

53  N.  W.  481,  18  L.  R.  A.  88,  37  Am.  St.  Rep.  441;  Id.,  40  Neb. 
394,  58  N.  W.  953 :  Hamilton  v.  Mining  Co.  (C.  C.)  33  Fed.  562. 
What  the  law  does  not  permit  a  husband  to  do  directly  he  may  not  do 
by  indirection ;  and,  as  we  have  seen  it  was  not  in  the  power  of 
David  Butler,  by  voluntarily  alienating  his  real  estate  during  his  mar- 
riage, to  deprive  his  wife  of  her  dower  rights  therein,  it  logically  fol- 
lows that  the  sale  of  David  Butler's  real  estate  on  execution,  on  a 
judgment  rendered  against  him  alone,  did  not  bar  or  extinguish  the 
dower  right  of  his  wife  or  widow  therein ;  and  it  is  immaterial  wheth- 
er the  debt  on  which  such  judgment  was  rendered  was  contracted  vol- 
untarily or  otherwise  by  the  Husband.  We  accordingly  hold  and  decide 
that  the  sale  of  the  real  estate  of  a  husband  under  execution  on  a  judg- 
ment against  him  alone,  followed  by  judicial  confirmation  and  convey- 
ance, does  not  extinguish  the  inchoate  dower  of  the  wife  in  such  real 
estate,  and  that  upon  the  death  of  the  husband  the  widow  is  entitled  to 
have  her  dower  assigned  out  of  such  real  estate.    *    *    * 


3.  Releiase;  by  Wife 


HINCHLIFFE  v.  SHEA. 

(Court  of  Appeals  of  New  York,  1886.    103  N.  T.  153,  8  N.  E.  477.) 

Appeal  from  judgment  of  general  term  of  the  supreme  court,  Sec- 
ond department,  affirming  judgment  of   Kings  county  special  term. 

A  mortgage  by  Shea,  his  wife  joining,  was  of  a  date  subsequent 
to  the  recovery  of  a  judgment  against  him  by  a  third  person;  and 
the  sheriff,  proceeding  upon  a  writ  of  execution  regularly  issued,  lev- 
ied upon  the  mortgaged  premises,  and  sold  them,  and,  there  being  no 
redemption,  executed  his  deed  to  one  Anne  Horgan,  she  being  the 
highest  bidder.  Shea  afterwards  died,  and  consequently  his  wife's 
inchoate  right  of  dower  became  a  vested  one.  Anne  Horgan  there- 
after conveyed  her  interest  to  the  widow.  Afterwards,  by  the  pres- 
ent suit,  the  widow's  dower  was  sought  to  be  subjected  to  the  pay- 
ment of  the  mortgage  debt.  Plaintiff  had  judgment  below,  and  de- 
fendant appealed. 

Andrews,  J.  The  joinder  by  a  married  woman  with  her  husband 
in  a  deed  or  mortgage  of  his  lands  does  not  operate  as  to  her  by 
way  of  passing  an  estate,  but  inures  simply  as  a  release,  to  the  gran- 
tee of  the  husband,  of  her  future  contingent  right  of  dower  in  the 
granted  or  mortgaged  premises,  in  aid  of  the  title  or  interest  conveyed 
by  his  deed  or  mortgage.  Her  release  attends  the  title  derived  from 
the  husband,  and  concludes  her  from  afterwards  claiming  dower  in 
the  premises,  as  against  the,  grantee  or  mortgagee,  so  long  as  there 
remains  a  subsisting  title  or  interest  created  by  his  conveyance.     But 


90  LIFB    ESTATES   ARISING   FROM    MARRIAGE 

it  is  the  generally  recognized  doctrine  that  when  the  husband's  deed 
is  avoided,  or  ceases  to  operate,  as  when  iFis  set  aside  at  the  in- 
stance of  creditors,  or  is  defeated  by  a  sale  on  execution  under  a 
prior  judgment,  the  wife  is  restored  to  her  original  situation,  and 
may,  after  the  death  of  her  husband,  recover  dower  as  though  she  had 
never  joined  in  the  conveyance.  Robinson  v.  Bates,  3  Mete.  (Mass.) 
40;  Malloney  v.  Horan,  49  N.  Y.  Ill,  10  Am.  Rep.  335;  Kitzmiller 
v.  Van  Rensselaer,  10  Ohio  St.  63 ;   Littlefield  v.  Crocker,  30  Me.  192. 

In  short,  the  law  regards  the  act  of  the  wife  in  joining  in  the  deed 
or  mortgage  not  as  an  alienation  of  an  estate,  but  as  a  renunciation 
of  her  inchoate  right  of  dower  in  favor  of  the  grantee  or  mortgagee 
of  her  husband  in  and  of  the  title  or  interest  created  by  his  convey- 
ance. It  follows,  therefore,  that  her  act  in  joining  in  the  conveyance 
becomes  a  nullity  whenever  the  title  or  interest  to  which  the  renuncia- 
tion is  incident  is  itself  defeated.  Scrib.  Dower,  c.  12,  §  49.  The 
wife's  deed  or  mortgage  of  her  husband's  lands,  cannot  stand  inde- 
pendently of  the*  deed  of  her  husband,  when  not  executed  in  aid 
thereof,  nor  can  she  by  joining  with  her  husband  in  a  deed  of  lands 
to  a  stranger,  in  which  she  has  a  contingent  right  of  dower,  but  in 
which  the  husband  has  no  present  interest,  bar  her  contingent  right. 
Marvin  v.  vSmith,  46  N.  Y.  571. 

These  principles  are,  we  think,  decisive  of  this  case.  The  plaintiff's 
mortgagee  has  been  defeated  by  the  paramount  title  derived  under 
the  execution  sale.  It  was  the  husband's  mortgage,  and  not  the  mort- 
gage of  the  wife,  except  for  the  limited  and  special  purpose  indicated. 
The  lien  of  the  mortgage,  as  a  charge  on  the  lands  of  the  husband 
has,  by  the  execution  sale,  been  subverted  and  destroyed ;  nor  can 
the  security  be  converted  into  a  mortgage  of  the  widow's  dower,  now 
consummate  by  the  death  of  her  husband.  This  would  be  a  perver- 
sion of  its  original  purpose.  Her  act  in  signing  the  mortgage  became 
a  nullity  on  the  extinguishment  of  the  lien  on  the  husband's  lands. 
If  on  the  execution  sale  there  had  been  a  surplus  applicable  to  the 
mortgage,  it  might  very  well  be  held  that  the  widow  could  not  be 
endowed  therein,  except  after  the  mortgage  had  been  satisfied.  The 
surplus  would  represent  in  part  the  mortgaged  premises.  See  Elmen- 
.lorf  V.  Tockwood,  57  N.  Y.  322. 

We  think  the  authorities  require  a  reversal  of  the  judgment.  Judg- 
ment reversed,  and  complaint  dismissed,  with  costs.  All  concur,  ex- 
cept Min,ER,  J.,  absent. 


^ 


DOWER — HOW    BARRED  91 


4.  WfDow's  Election 


WARREN  V.  WARREN. 
(Supreme  Court  of  Illinois,  1893.     148  111.  641,  36  N.  E.  611.) i* 

Appeal  from  circuit  court,  Winnebago  county;  John  D.  Crabtree, 
Judge. 

Bill  by  Eliza  A.  Warren  against  John  H.  Warren,  individually,  and 
as  executor  of  the  last  will  and  testament  of  Alpha  Warren,  deceased, 
Edward  S.  Warren,  Harriet  N.  Warren,  and  Roy  Warren.  There 
was  a  decree  granting  complainant  only  part  of  the  relief  prayed 
for,  and  she  appeals.    Reversed. 

MagrudER,  J.,^^  (after  stating  the  facts.)  The  first  question  aris- 
ing upon  the  assignments  of  error  is  whether  or  not  the  appellant  is 
entitled  to  have  dower  assigned  to  her  in  the  lands  of  her  deceased 
husband.  Sections  10  and  11  of  the  present  dower  act,  which  was 
approved  on  March  4,  1874,  and  went  into  force  on  July  1,  1874,  are 
as  follows : 

(10)  "Any  devise  of  land,  or  estate  therein,  or  any  other  provision 
made  by  the  will  of  a  deceased  husband  or  wife  for  a  surviving  wife 
or  husband,  shall,  unless  otherwise  expressed  in  the  will,  bar  the 
dower  of  such  survivor  in  the  lands  of  the  deceased,  unless  such  sur- 
vivor shall  elect  to  and  does  renounce  the  benefit  of  such  devise  or 
other  provision,  in  which  case  he  or  she  shall  be  entitled  to  dower  in 
the  lands  and  to  one-third  of  the  personal  estate  after  the  payment 
of  all  debts." 

(11)  "Any  one  entitled  to  an  election  under  either  of  the  two  pre- 
ceding sections  shall  be  deemed  to  have  elected  to  take  such  jointure, 
devise  or  other  provision,  unless,  within  one  year  after  letters  testa- 
mentary of  administration  are  issued,  he  or  she  shall  deliver  or  trans- 
mit to  the  county  court  of  the  proper  county  a  written  renunciation 
of  such  jointure,  devise  or  other  provision." 

Section  13  prescribes  the  form  of  renunciation,  by  the  terms  of 
which  the  surviving  husband  or  wife  does  thereby  "renounce  and  quit- 
claim all  claim  to  the  benefit  of  any  *  *  *  devise  or  other  pro- 
vision made  to  me  by  the  last  will  and  testament  of  the  said  *  *  * 
and  I  do  elect  to  take  in  lieu  thereof  my  dower  and  legal  share  in 
the  estate  of  the  said     *     *     *." 

As  the  appellant  did  not  renounce  the  provisions  of  the  will  within 
one  year  after  letters  testamentary  were  issued  to  the  executor  of 
Alpha  Warren's  estate,  it  would  seem  to  be  clear  that  she  had  elected 
to  take  under  the  will,  and  that  she  is  not  entitled  to  an  assignment 

14  Rehearing  denied. 

15  The  statement  of  facts  and  part  of  the  opinion  is  omitted. 


92  LIFE    ESTATES    ARISING   FROM   MARRIAGE 

of  dower  in  the  testator's  lands  under  the  decisions  of  this  court. 
Cowdrey  v.  Hitchcock,  103  111.  262;  Stunz  v.  Stunz,  131  111.  210, 
23  N.  E.  407;   Cribben  v.  Cribben,  136  111.  609,  27  N.  E.  70. 

It  is  contended  by  counsel  for  appellant  that  the  acceptance  by  the 
widow  of  the  provision  made  for  her  in  the  will  will  not  bar  her 
dower,  unless  such  provisions  shall  be  a  reasonably  adequate  com- 
pensation for  the  loss  of  what  she  would  have  been  entitled  to  under 
N  the  statute  if  there  had  been  no  will.  This  contention  is  based  upon 
the  decision  of  the  circuit  court  of  the  United  States  for  the  seventh 
circuit  in  the  case  of  U.  S.  v.  Duncan,  4  McLean,  99,  Fed.  Cas.  No. 
15,002,  where  a  liberal  construction  was  given  to  sections  39  and  40 
of  the  act  of  this  state  in  regard  to  wills  in  force  in  1829,  (Rev.  Laws 
1833,  p.  624.)  But  a  comparison  of  sections  39  and  40  of  the  act 
of  1829  with  sections  10  and  11  of  the  act  of  1874  will  show  that 
the  phraseology  of  the  former  is  different  from  the  phraseology  of 
the  latter.  By  the  terms  of  said  section  11,  if  the  surviving  husband 
or  wife  fails  to  renounce  within  the  year,  he  or  she  shall  be  deemed 
to  have  elected  to  take  the  provision  given  by  the  will.  The  direc- 
tions of  the  statute  are  explicit,  and  a  compliance  with  them  can  work 
no  harm  to  any  of  the  parties  concerned.  Section  10  directs  that  the 
devise  or  other  provision  made  by  the  will  sfiall  be  a  bar  to  dower 
"unless  otherwise  expressed  in  the  will."  If,  therefore,  a  husband  de- 
sires to  make,  in  his  will,  a  provision  for  his  wife,  which  shall  not 
operate  as  a  bar  to  her  dower,  he  can  therein  state  that  such  pro- 
vision is  not  to  be  in  lieu  of  dower,  in  which  case  she  will  take  both 
her  dower  and  what  is  devised  or  bequeathed  to  her.  If  the  widow 
deems  such  devise  or  bequest  an  inadequate  compensation  for  dower^ 
she  can  file  her  renunciation  within  the  time  specified,  and  thereby 
take  what  she  is  entitled  to  under  the  statute. 

In  the  present  case,  however,  we  are  not  satisfied  that  the  provi- 
sion made  for  the  appellant  by  the  will  is  not  a  reasonably  adequate 
compensation  for  her  dower,  if  the  doctrine  of  the  Duncan  Case 
should  be  held  to  be  applicable.  It  is  conceded  that  the  personal  es- 
tate of  the  deceased  testator  has  been  exhausted  in  the  payment  of 
ihe  debts  and  expenses  of  administration,  and  that  no  personal  prop- 
erty would  have  passed  to  appellant  if  her  husband  had  died  intes- 
tate. All  that  she  could  have  received  in  any  event  was  dower  in  the 
lands.  All  that  her  dower,  when  assigned  and  set  off  would  amount 
to,  would  be  the  right  to  use  the  one-third  in  value  of  her  husband's 
lands,  and  draw  the  rents  and  profits  thereof,  during  her  life.  The 
will,  by  directing  that  one-third  of  the  annual  rents  and  interest,  after 
deducting  certain  expenditures,  shall  belong  to  her,  gives  her  what  is 
substantially  equivalent  to  the  value  of  her  dower  in  the  real  estate. 

Counsel  refer  us  to  a  number  of  cases  which  hold  that  the  wife 
cannot  be  deprived  of  her  dower  by  a  testamentary  disposition  in  her 
favor,  so  as  to  put  her  to  her  election,  unless  the  testator  has  de- 


DOWER — HOW  BARRED  93 

V 

clared  the  same  to  be  in  lieu  of  dower,  either  in  express  words  or  by 
necessary  implication.  Under  the  rule  laid  down  in  most  of  these 
cases,  the  testator  will  not  be  presumed  to  have  intended  the  provi- 
sion in  his  will  to  be  a  substitute  for  dower,  unless  the  claim  of  dower 
would  be  inconsistent  with  the  will,  or  so  repugnant  to  its  provisions 
as  to  disturb  and  defeat  them.  Adsit  v.  Adsit,  2  Johns.  Ch.  (N.  Y.) 
448,  7  Am.  Dec.  539;  Smith  v.  Kniskern,  4  Johns.  Ch.  (N.  Y.)  9; 
Wood  V.  Wood,  5  Paige,  595 ;  Fuller  v.  Yates,  8  Paige  (N.  Y.)  325 ; 
Church  V.  Bull,  2  Denio  (N.  Y.)  430,  43  Am.  Dec.  754.  The  deci- 
sions referred  to  will  be  found,  upon  examination,  to  have  been  ren- 
dered in  the  absence  of  such  statutory  provisions  as  exist  in  this  state, 
and  such  decisions  are  consequently  inapplicable  to  the  case  at  bar. 
The  great  object  in  construing  the  wills  which  the  courts  there  had 
under  consideration,  was  to  ascertain  the  intention  of  the  testator 
upon  the  question  whether  or  not  the  testamentary  disposition  was 
to  be  taken  in  lieu  of  dower.  Even  in  the  Duncan  Case,  supra,  the 
reasoning  of  the  court  proceeds  largely  upon  the  ground  that  the 
testator  jwillnot  be  presumed  to  have  intended  his  bequest  or  devise 
to  be  a  substitute"  for  dower  if  its  amount  or  value  is,  to  a  very  con- 
siderable extent,  less  than  the  amount  or  value  of  the  dower.  But, 
under  the  peculiar  terms  of  tlie  Illinois  statute,  the  provision  in  the 
will  is  declared  to  be  a  bar,  unless  the  intention  that  it  shall  not  be  a 
bar  is  expressed  in  the  will.  Tlie  statute  makes  the  silence  of  the 
testator  the  conclusive  index  to  his  intention,  and  it  also  makes  the 
failure  to  renounce  within  a  specified  time  conclusive  evidence  that 
the  surviving  husband  or  wife  has  elected  to  take  under  the  will. 

We  think,  however,  that  if  the  rules  laid  down  in  the  authorities 
relied  upon  are  applied  to  the  interpretation  of  the  will  in  this  case, 
there  will  be  disclosed  an  intention  to  make  the  testamentary  provi- 
sions a  substitute  for  dower,  and  not  a  gift  in  addition  to  it.  Alpha 
Warren  drew  his  own  will,  and  jie  therein  designates  the  portion  of 
the  "annual  rents  and  interest"  given  to  his  wife  as  ''one-third  of 
income  belonging  to  her  as  dower."  If  the  one-third  of  the  income 
specified  in  the  will  was  to  be  her  dower  or  "dowery,"  he  could  not 
have  intended  that  she  should  have  another  dower  outside  of  and  in 
addition  to  that  given  by  the  will.  Again,  after  directing  that  one- 
third  of  his  net  annual  income  shall  belong  to  his  wife,  he  directs 
that  the  other  two-thirds  thereof  shall  belong  to  his  son,  John  H.  War- 
ren. If  the  wife  was  to  have  dower  besides  the  third  of  the  income 
given  heF'by'tBe  will,  the  son  could  not  take  the  two-thirds  of  the 
income  therein  devised  to  him.  The  widow,  in  such  case,  would  vir- 
tually have  two-thirds,  and  only  one-third  would  be  left  for  the  son. 
It  follows  that  the  claim  of  dower  on  the  part  of  the  widow  is  incon- 
sistent with  the  provision?  made  for  the  son  in  the  will,  and  so  re- 
pugnant to  them  that,  if  allowed,  it  would  defeat  them.  A  case  might 
arise  where  the  widow,  in  accepting  the  testamentary  disposition,  acted 


94  LIFE    ESTATES    ARISING    FROM    MARRIAGE 

without  full  knowledge  and  understanding  of  her  true  situation  and 
rights,  and  of  the  consequence  of  her  acceptance.  4  Kent,  Conim. 
p.  58.  It  might  then  be  necessary  to  determine  whether  the  lapse  of 
more  than  a  year  without  renunciation  would  cut  her  off  from  the 
privilege  of  making  her  election.  U.  S.  v.  Duncan,  supra;  Cowdrey 
V.  Hitchcock,  supra.  But  here  it  appears  that  the  widow  was  correctly 
advised  as  to  her  testamentary  rights  and  her  statutory  rights  and 
the  value  of  the  one  as  compared  with  the  other. 

Counsel  further  insists,  that  the  dower  of  the  appellant  is  not  barred 
because  the  devise  is  not  to  the  wife,  but  to  the  executor  in  trust  for 
her  benefit.  Under  the  English  statute  of  uses  a  jointure  was  not 
available  to  bar  the  widow's  dower,  unless  the  settlement  was  to  the 
wife  herself,  and  not  to  any  other  person  in  trust  for  her.  Van  Ars- 
dale  v.  Van  Arsdale,  26  N.  J.  Law,  404.  It  has  also  been  held  that 
a  devise  of  lands  to  trustees  for  the  benefit  of  the  wife  does  not  nec- 
essarily indicate  intention  to  defeat  dower,  as  the  trustee  may  take 
the  lands  subject  to  its  legal  incidents,  that  of  dower  included.  Wood 
V.  Wood,  supra;  Church  v.  Bull,  supra.  But  the  language  of  our 
statute  is  broad  enough  to  include  devises  to  trustees  for  the  benefit 
of  the  wife,  as  well  as  those  directly  to  the  wife  herself.  It  would  be 
a  narrow  construction  that  would  exclude  a  devise  to  a  trustee  from 
the  meaning  of  the  following  words  in  section  10 :  "Any  other  provi- 
sion made  by  the  will  of  a  deceased  husband  or  wife  for  a  surviving 
wife  or  husband."  The  use  of  the  word  "for"  forbids  a  limitation 
of  the  meaning  to  devises  made  to  the  wife.     *     *     * 


BOMESTEADS  95 


HOMESTEADS 
I.  Who  Entitled  to  Homestead  * 


SHEEHY  V.  SCOTT. 

(Supreme  Court  of  Iowa,  1905.     128  Iowa,  551,  104  N.  W.  1139,  4  L.  R.  A. 

[N.  S.]  365.) 

Appeal  from  District  Court,  Muscatine  County ;  James  W.  Bollinger, 
Judge. 

Mary  A.  Scott,  a  widow,  died  intestate  May  13,  1903,  seised  of  the 
following  real  estate:  Lot  9  in  block  71,  in  the  city  of  Muscatine; 
also  lot  8  and  the  east  half  of  lot  9  in  block  106,  and  lot  8  in  block  107. 
Ten  children  survived  her,  one  of  whom,  George  E.  Scott,  was  in- 
debted to  the  plaintiff  on  a  promissory  note  of  $1,500,  dated  February 
14,  1898,  with  interest  at  6  per  cent,  per  annum  on  which  this  action 
was  begun  June  2,  1903,  aided  by  writ  of  attachment,  which  was  levied 
on  Scott's  interest  in  the  above  real  estate  June  20,  1903.  He  answered 
by  admitting  the  indebtedness  and  alleging  that  lot  9  in  block  71  was 
the  homestead  of  deceased  and  for  that  reason  exempt  from  the  levy. 
John  F.  De  Camp  intervened,  and  in  his  petition  alleged  the  purchase 
of  the  east  half  of  lot  9  and  lot  8  from  Mary  A.  Scott  January  3,  1903 ; 
that  George  E.  Scott  had  conveyed  his  interest  therein  to  him,  and  he 
had  taken  possession,  all  prior  to  the  levy,  which  he  prayed  to  have 
vacated.  The  reply  put  in  issue  the  allegations  of  the  answer  and  pe- 
tition of  intervention.  On  hearing  judgment  was  entered  against 
George  E.  Scott  as  prayed.  Lot  9  in  block  71  was  adjudged  to  be 
exempt  as  the  homestead  of  deceased.  Emma  De  Camp  was  substitut- 
ed as  intervener,  and  her  petition  dismissed,  and  the  property  other 
than  the  homestead  ordered  to  be  sold  and  the  proceeds  applied  on 
the  judgment.  The  plaintiff  and  intervener  both  appeal;  that  of  the 
former  being  first  perfected.    Affirmed. 

Ladd,  J.2  The  husband  of  Mary  A.  Scott  died  in  1898.  From  that 
time  until  April,  1903,  she  operated  the  Scott  House,  a  hotel  in  Musca- 
tine. In  April,  1902,  she  purchased  lot  9  in  block  71,  but  did 
not  move  into  the  house  thereon  until  April  7,  1903.  Shortly  after- 
wards she  was  taken  sick,  and  died  May  13th  of  the  same  year.  The 
contention  of  the  plaintiff  is  that  this  lot  was  not  her  homestead  at  the 
time  of  her  death,  and  therefore  the  interest  of  George  E.  Scott,  one 
of  her  ten  surviving  children,  therein  should  be  subjected  to  the  lien 
of  her  judgment.  Our  statute  provides  that  the  homestead  is  exempt 
from  the  precedent  debts  of  the  heirs  of  the  owner.    All  of  Mary  A. 

1  For  discussion  of  principles,  see  Burdicli,  Real  Prop.  §  63. 

2  Part  of  the  opinion  is  omitted. 


96  HOMESTEADS 

Scott's  children  had  attained  their  majority.  One  son,  Frank  E.  Scott, 
and  a  daughter,  Mrs.  Fahey,  and  the  latter's  daughter,  had  been  living 
in  the  house  with  her  for  over  a  month,  when  she  died.  It  was  her 
home,  and  the  controversy  is  whether  her  relations  with  these  children 
were  such  that  she  and  they,  or  either  of  them,  constituted  a  family; 
for  in  this  state  the  exemption  of  the  homestead  is  to  the  family.  A 
single  person  is  not  a  family,  and  therefore  cannot  claim  a  homestead, 
unless  continuing  in  possession  as  surviving  spouse.  Fullerton  v.  Sher- 
rill,  114  Iowa,  511,  87  N.  W.  419;  Emerson  v.  Leonard,  96  Iowa,  311, 
65  N.  W.  153,  59  Am.  St.  Rep.  372.  "Family"  has  been  defined  as 
a  collective  jDody  of  persons  who  live  in  one  house  under  one  head  or 
manager.  Tyson  v.  Reynolds,  52  Iowa,  431,  3  N.  W.  469;  Parsons 
V.  Livingston,  11  Iowa,  104,  77  Am.  Dec.  135.  But_this  is  not  ac- 
curate, for  strangers  might  thus  band  themselves  together  and  live 
under  the  direction  of  a  leader.  To  constitute  one  or  more  persons, 
with  another,  living  together  in  the  same  house,  a  family,  it  must  ap- 
pear that  they  are  being  supported  by  that  other  in  whole  or  in  part, 
and  are  dependent  on  him  therefor,  and,  further,  that  he  is  under  a 
natural  or  moral  obligation  to  render  such  support.  Fox  v,  Ralston, 
126  Iowa,  481,  102  N.  W.  424. 

Does  the  evidence  indicate  that  such  a  relation  existed  between 
Mrs.  Scott  and  those  who  lived  with  her?'  The  record  has  convinced 
us  that  Frank  E.  Scott,  though  over  40  years  old,  was  dependent  on 
the  deceased  for  his  support.  He  had  been  married,  but  was  divorced. 
He  was  lazy,  addicted  to  the  excessive  use  of  intoxicating  liquors  and 
morphine,  and  was  reputed  a  gambler.  He  had  kept  a  butcher  shop, 
but,  upon  his  father's  death  in  1898,  returned  to  the  Scott  House, 
where  he  lived  until  his  mother's  removal  to  the  premises  in  contro- 
versy. For  several  years  one  Weaver  had  charge  of  the  hotel  office, 
and  Frank  did  chores  about  the  hotel.  After  Weaver  left  he  took 
charge  of  the  office,  kept  the  books,  and  received  money,  but  one  Kline 
was  allowed  part  of  his  board  for  sleeping  in  the  office  and  caring" 
for  him  when  disabled  by  the  use  of  alcohol  or  morphine.  That  during 
this  time  his  mother  supplied  him  with  money  is  doubtless  true,  and 
he  may  have  construed  that  received  as  wages.  Indeed,  he  testified 
that  she  had  paid  him  "different  prices  at  different  times — about  $10 
a  week  and  my  board" ;  that  "mother  always  paid  all  of  her  children 
wages;  that  mother  paid  me  wages  up  to  her  death,  and  I  know  she 
paid  my  sister  Mrs.  Fahey  every  Saturday  night."  Nowhere  does  he 
undertake  to  state  that  any  agreement  was  had  as  to  what  he  was  to 
receive,  or  what  was  in  fact  paid  or  when ;  and,  aside  from  his  desig- 
nation of  what  she  gave  him  as  wages,  his  testimony  is  not  inconsistent 
with  the  thought  that  she  merely  gave  him  enough  to  supply  his  wants, 
which  may  have  been  more  or  less  than  wages.  During  the  six  weeks 
prior  to  his  mother's  death,  he  did  nothing-  but  chores  about  the  house, 
and  since  then  he  had  continued  in  that  occupation  for  his  board  with 
his  sister.     Of  course,  he  always  has  been  intending  to  leave,  but, 


HOW   ACQUIRED 


97 


through  the  persuasion  of  mother  and  sister,  remained  "until  he  got 
ready  to  settle."  He  admits  that  he  threatened  the  defendant  that 
he  would  "swear  to  a  lie,"  rather  than  allow  him  to  succeed,  and  this, 
with  his  appearance  on  the  stand,  doubtless  led  the  district  court  to  re- 
ject the  story  of  having  been  merely  an  employe  of  his  mother,  and 
adopt  the  more  reasonable  conclusion,  deducible  from  the  record,  that, 
through  excesses,  he  had  become  practically  incapable  of  caring  for 
himself,  and  was  being  maintained  by  his  mother,  because  of  the  natu- 
ral obligation  to  her  child.  The  relation  of  Mrs.  Fahey  was  not  shown 
to  have  been  that  of  a  dependent,  though  she  lived  with  her.  But  the 
two  were  enough  to,  and  did,  constitute  a  family,  within  the  meaning 
of  the  law.     Fox  v.  Ralston,  supra,  and  cases  cited. 

Rulings  on  objections  to  questions  propounded  to  different  witnesses, 
and  also  the  taxation  of  costs,  are  assigned  as  errors,  but  not  argued, 
and  for  this  reason  not  decided.  The  proof,  independent  of  such 
evidence,  however,  was  sufficient  to  show  that  deceased,  who  was  79 
years  of  age,  was  occupying  the  premises  as  her  home ;  and  as  she, 
with  her  dependent  son,  constituted  a  family,  the  court  riglitly  decided 
that  the  property  was  exempt  as  a  homestead.    *    *    *  » 


II.  How  Acquired  * 


INGELS  v.  INGELS. 

(Supreme  Court  of  Kansas,  1893.     50  Kan.  755,  32  Pac.  387.) 

Error  from  district  court,  Atchison  county ;  Robert  M.  Eaton,  Judge. 

Action  by  Lemuel  Ingels  against  Milliard  F.  Ingels  and  Eliza  Ingels. 
There  was  judgment  for  plaintiff,  and  defendants  bring  error.  Af- 
firmed. 

Allen,  J.  On  the  22d  day  of  June,  1889,  defendant  in  error  ob- 
tained a  judgment  in  the  district  court  of  Atchison  county,  Kan., 
against  T.  J.  Ingels  and  M.  F.  Ingels  for  the  sum  of  $906.90  and 
costs  of  suit.  On  the  9th  day  of  August,  1889,  execution  was  issued 
on  said  judgment  to  the  sheriff  of  Atchison  county.     On  the  19th  of 

3  In  North  Dakota  it  has  been  recently  held  that  a  divorced  husband,  de- 
prived of  the  custody  of  the  children,  is  not  the  head  of  a  family.  Holcomb 
V.  Holcomb,  18  N.  D.  561,  120  N.  W-.  547,  21  Ann.  Cas.  1145  (1909).  In  Missis- 
sippi, it  is  held,  however,  that  a  vridower  vphose  minor  children  are  absent  at 
school  in  another  state  may  claim  a  homestead.  Roberts  v.  Thomas,  94  Miss. 
219,  48  South.  408,  136  Am.  St.  Rep.  573  (1908).  Under  some  of  the  statutes, 
persons  other  than  heads  of  families  may  have  the  exemption  privilege  of  a 
homestead.  See  Holm  v.  Pauly,  11  Cal.  App.  724,  106  Pac.  266  (1909);  Mc- 
Laughlin V.  Collins,  75  N.  H.  557,  78  Atl.  623  (1910). 

*  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  64. 

Burd.Cas.Real  Prop. — 7 


98  HOMESTEADS 

August,  1889,  said  sheriff  levied  the  same  on  lot  11,  and  the  west  40 
feet  of  lot  12,  block  11,  in  that  part  of  the  city  of  Atchison  commonly- 
known  as  "West  Atchison.''  The  sheriff  duly  advertised  this  property 
for  sale,  and  on  the  26th  day  of  September,  1889,  sold  the  same  to  the 
plaintiff  below  for  the  sum  of  $157.  Motions  were  thereafter  filed 
both  to  confirm  and  set  aside  said  sale.  These  motions  were  heard 
at  the  same  time.  The  motion  to  set  aside  the  sale  was  overruled,  and 
the  motion  to  confirm  was  sustained.  The  defendants  below  excepted 
to  the  ruling  of  the  court  on  these  motions,  and  bring  the  case  here 
for  review. 

Two  points  are  urged  by  counsel  for  the  plaintiffs  in  error.  One 
is  that  the  appraisement  is  defective,  because  the  appraisement  fails 
to  state  that  the  appraisers  made  an  estimate  of  the  real  value  of  the 
property.  The  appraisement  does  state  that  the  appraisers,  being  first 
duly  sworn  impartially  to  appraise  the  said  property  upon  actual  view, 
had  truly  and  impartially  appraised  said  property,  and  that  the  par- 
ticular property  in  controversy  was  appraised  at  $150.  We  think  this 
a  substantial  compliance  with  the  statute.  It  is  not  necessary  that 
the  precise  language  of  the  statute  be  used  in  the  report  of  the  ap- 
praisers. We  think  that  the  appraisement  in  this  case  fairly  shows 
that  the  property  was  appraised  at  what  the  appraisers  deemed  its  real 
lvalue.  This  is  a  substantial  compliance  with  the  requirement  of  the 
jitatute. 

The  principal  question  presented  for  our  consideration  is  whether 
3r  not  this  property  was  a  homestead,  and  therefore  exempt  from  levy 
and  sale.  The  facts  with  reference  to  the  matter,  as  appears  from  the 
record,  are  as  follows :  The  plaintiffs  in  error  formerly  owned  and 
occupied  a  homestead  in  \\'est  Atchison,  which  they  sold  in  the  year 
1887,  expecting  and  intending  at  the  time  to  reinvest  the  proceeds  in 
another  homestead.  Soon  thereafter  they  invested  a  part  of  the  pro- 
ceeds of  this  sale  in  the  property  in  controversy,  for  the  purpose  and 
with  the  intention  of  making  it  their  permanent  homestead.  At  the 
fime  of  the  purchase  there  was  no  house  or  other  building  thereon, 
and  the  same  was  not  inclosed.  They  inclosed  the  lots  with  a  fence, 
and,  as  fast  as  they  were  able,  proceeded  to  and  had  hauled  on  said 
lots  materials,  stone,  lumber,  etc.,  with  which  to  build  a  dwelling  house 
and  building  to  occupy  as  a  homestead.  Milliard  F.  Tngels  then  took 
a  contract  at  Valley  Falls  to  bore  for  coal,  and  temporarily  moved  to 
Valley  Falls,  to  be  near  his  work,  and  intending  to  return  to  his  home- 
stead, complete  his  dwelling  house,  and  occupy  the  same  as  his  perma- 
nent homestead.  While  he  was  still  engaged  on  his  contract  at  Valley 
Falls,  and  before  he  had  completed  the  same,  on  the  19th  day  of  Au- 
ijust,  1889,  the  sheriff  levied  said  execution  on  said  property,  and  sofd 
the  same  as  before  stated.  The  plaintiffs  in  error  have  no  other  home- 
stead, and  no  other  real  estate  of  which  to  make  a  homestead.  After 
the  levy  the  defendants  below  built  a  house  on  said  lots,  which  they 
occupied  at  the  time  of  the  sale.     The  defendants  never  occupied  the 


HOW  ACQUIRED 


99 


premises  in  question  from  the  time  they  were  purchased  by  the  defend- 
ants, in  March,  1887,  till  after  the  making  of  the  levy  thereon;  and 
at  the  time  said  judgment  was  rendered  and  at  the  time  the  levy  was 
made,  the  said  premises  were  vacant  and  unoccupied,  excepting  that 
they  were  inclosed  by  an  old  fence. 

The  facts  in  this  case  are  to  be  gathered  from  the  affidavit  made  by 
both  plaintiffs  in  error,  and  also  from  an  agreed  statement  of  the 
facts  made  by  both  parties,  and  included  in  the  record.  The  state- 
ments with  reference  to  the  placing  of  building  materials  on  the  lots 
are  contained  in  the  affidavit.  From  the  agreed  statement  it  appears 
that  the  defendants  never  occupied  the  premises  in  question  from  the 
time  they  purchased  them  to  the  time  of  the  levy,  and  that  at  the 
time  the  judgment  was  rendered  and  at  the  time  of  the  levy  the  premis- 
es were  vacant  and  unoccupied,  except  that  they  were  inclosed  by 
an  old  fence.  We  can  only  harmonize  the  facts  gathered  from  the 
affidavit  with  those  contained  in  the  agreed  statement  of  facts  by  con- 
cluding that  whatever  building  materials  had  been  placed  on  the  lots 
were  removed  therefrom  before  the  levy  was  made.  It  clearly  ap- 
pears from  the  whole  record  that  the  premises  were  never  in  fact  oc- 
cupied by  the  defendants  as  a  homestead,  and  also  that  at  the  time 
the  judgment  was  rendered  and  the  levy  made  the  lots  were  vacant  and 
unoccupied. 

The  question  is  now  presented  for  our  consideration  as  to  whether 
the  purchase  of  this  property  for  a  homestead,  and  the  intention  in 
the  minds  of  these  parties  to  make  it  a  homestead  in  the  future,  is 
sufficient  to  supply  the  requirement  of  occupancy  contained  in  the  con- 
stitution. Section  9,  art.  15,  of  the  constitution  reads  as  follows: 
"Sec.  9.  A  homestead  to  the  extent  of  one  hundred  and  sixty  acres  of 
farming  land,  or  of  one  acre  within  the  limits  of  an  incorporated  town 
or  city,  occupied  as  a  residence  by  the  family  of  the  owner,  together 
with  all  the  improvements  on  the  same,  shall  be  exempted  from  forced 
sale  under  any  process  of  law,  and  shall  not  be  alienated  without  the 
joint  consent  of  husband  and  wife,  when  that  relation  exists;  but  no 
property  shall  be  exempt  from  sale  for  taxes,  or  for  the  payment  of 
obligations  contracted  for  the  purchase  of  said  premises,  or  for  the 
erection  of  improvements  thereon:  provided,  the  provisions  of  this 
section  shall  not  apply  to  any  process  of  law  obtained  by  virtue  of  a 
lien  given  by  the  consent  of  both  husband  and  wife." 

This  section  of  the  constitution  has  been  considered  and  construed 
by  this  court  in  numerous  cases.  In  the  case  of  Edwards  v.  Fry,  9 
Kan.  417,  Mr.  Justice  Brewer,  speaking  for  the  court,  used  the  follow- 
ing language:  "We  know  the  spirit  which  animates  the  people  of 
Kansas,  the  makers  of  our  constitution  and  laws,  on  this  homestead 
question.  We  note  the  care  with  which  they  have  sought  to  preserve 
the  homestead  inviolate  to  the  family.  We  have  no  disposition  to 
weaken  or  whittle  away  any  of  the  beneficent  constitutional  or  statu- 
tory provisions  on  the  subject.    We  know  that  the  purchase  of  a  home- 


100  HOMESTEADS 

Stead,  and  the  removal  onto  it  cannot  be  made  momentarily  contempo- 
raneous. It  takes  time  for  a  party  in  possession  to  move  out,  and  then 
more  time  for  the  purchaser  to  move  in.  Repairs  may  have  to  be 
made,  or  buildings  partially  or  wholly  erected.  Now,  the  law  does 
not  wait  till  all  tliis  has  been  done,  and  the  purchaser  actually  settled 
in  his  new  home  before  attaching  to  it  the  inviolability  of  a  homestead. 
A  purchase  _of  a  homestead  with  a  view  to  occupancy,  follo\yed  by 
occupancy  within  a  reasonable  time,  may  secure  ab  initio  a  homestead 
inviolability.  Yet  occupation  is  nevertheless  an  essential  element  to 
secure  this  inviolability." 

Again,  in  the  case  of  Monroe  v.  May,  9  Kan.  466,  it  was  held :  "A' 
purchase  of  a  homestead  with  a  view  to  occupancy,  followed  by  oc- 
cupancy within  a  reasonable  time,  receives  from  the  time  of  purchase 
a  homestead  exemption  from  seizure  upon  execution  or  attachment." 
The  facts  in  that  case  with  reference  to  the  occupancy  are  briefly  these : 
Monroe,  the  judgment  debtor,  owned  a  farm,  which  he  sold  in  No- 
vember, 1870,  receiving  in  exchange  a  house  and  lot  in  Atchison  and 
$1,600  in  notes.  Possession,  by  agreement,  was  to  be  exchanged  on 
the  1st  of  March  following.  The  exchange  was  so  made,  and  this 
city  property  was  occupied  and  claimed  by  Monroe  and  wife  as  their 
homestead.  The  court  in  that  case  came  to  the  conclusion  that  the 
Monroes  became  actual  occupants  of  this  property  within  a  reasonable 
time  after  its  purchase,  and  that  it  was  exempt  to  them  as  a  homestead. 
The  time  intervening  between  the  purchase  and  taking  possession  was 
four  months  or  less. 

Again,  in  the  case  of  Gilworth  v.  Cody,  21  Kan.  702,  it  appeared 
that  Cody,  on  December  1,  1877,  purchased  80  acres  of  land  for  the 
purpose  of  present  use  as  a  residence.  The  land  was  vacant  at  the 
date  of  the  purchase.  Cody  commenced  at  once  to  dig  a  cellar,  and 
haul  stone  for  a  dwelling  house.  On  December  5th,  he  started  to  a 
neighboring  town  to  purchase  materials  out  of  which  to  erect  a  dwell- 
ing house.  He  made  such  purchase,  and  returned  with  the  materials 
on  December  7th.  He  unloaded  the  materials  adjoining  the  premises 
on  the  same  day  the  premises  were  levied  on  under  the  order  of  attach- 
ment. Cody  continued  the  construction  of  his  dwelling  house,  and 
completed  the  same  December  28,  1877,  and  moved  at  once  with  his 
family  into  the  dwelling,  and  occupied  it  as  the  residence  of  himself 
and  family.  Chief  Justice  Horton,  in  delivering  the  opinion  of  the 
court,  used  the  following  language,  after  having  reviewed  the  author- 
ities on  the  subject:  "These  decisions  clearly  establish  the  doctrine 
that  our  homestead  laws,  beneficial  in  their  operation,  and  founded 
in  a  wise  policy,  should  be  liberally  construed,  so  as  to  carry  out  their 
spirit.  Considered  in  this  light,  in  this  case  there  was  such  an  actual 
purpose  and  intention  of  present  occupancy,  accompanied  with  such 
acts  on  the  part  of  the  defendant  in  error  in  the  commencement  and 
completion  of  his  dwelling,  together  with  his  residence  therein  with  his 
family,  that  this  might  reasonably  be  held  to  amount  in  substance  to 


HOW   ACQUIRED  101 

actual  occupancy  at  the  date  of  the  levy.  While,  therefore,  we  hold, 
within  the  terms  of  the  law,  that  occupation  is  an  essential  element  to 
secure  a  homestead  inviolability,  under  ^he  exceptional  circumstances 
which  appear  from  the  findings  of  the  court,  the  intentions  and  acts 
of  the  purchaser  of  the  land  in  controversy  may  be  construed  into 
a  legal  equivalent  of  actual  occupancy  of  such  premises.  Law  is  en- 
titled to  and  can  command  respect  only  when  it  is  reasonable,  and 
adapted  to  the  ordinary  conduct  of  human  affairs ;  and  the  construc- 
tion we  have  given  above  to  the  provisions  securing  homestead  exemp- 
tions is  certainly  within  their  spirit,  and  more  in  consonance  with  a 
reasonable  interpretation  thereof,  than  if  we  adopted  the  opposite 
conclusion." 

Counsel  for  the  plaintiffs  in  error  calls  our  attention  to  the  case 
of  Reske  v.  Reske,  51  Mich.  541,  16  N.  W.  895,  47  Am.  Rep.  594. 
The  opinion  in  that  case  was  delivered  by  Justice  Cooley,  and  carries 
the  doctrine  of  constructive  occupancy  for  a  homestead  to  the  furthest 
limit  yet  reached  by  any  court,  so  far  as  we  have  been  able  to  review 
the  authorities.  It  appeared  in  that  case  that  the  defendant  purchased 
the  lot  in  controversy  in  Detroit  in  January,  1880.  He  was  a  single 
man  at  the  time  of  the  purchase,  but  soon  thereafter  married.  He  then 
fenced  the  lot,  and  commenced  making  use  of  it.  He  built  a  barn  and 
shed,  dug  a  well,  kept  his  horses,  his  hogs,  and  his  poultry,  and  also 
piled  wood,  which  he  kept  for  sale,  on  the  lot.  At  first  he  lived  at 
some  considerable  distance,  but  afterwards  took  board  across  the  way, 
and  remained  there  while  building.  In  the  spring  of  1881  he  obtained 
figures  from  a  builder  on  the  cost  of  a  house,  but,  not  being  able  to 
go  on,  he  did  not  then  build.  It  was  towards  the  end  of  1882  before 
they  were  able  to  put  up  a  house,  and  they  were  not  living  in  it  till 
1883.  In  November,  1882,  judgment  was  taken  against  the  defendant, 
and  execution  levied  on  the  lot.  The  court  in  that  case  comments  on 
the  fact  that  the  defendant  was  all  the  time  in  the  actual  occupancy 
of  the  lot,  and  was  from  time  to  time,  doing  various  acts  tending 
towards  the  construction  of  such  buildings  and  conveniences  as  were 
required  in  order  to  make  it  a  home.  The  period  of  time  intervening 
between  the  purchase  of  the  lot  and  the  levy  of  the  execution  was  a 
few  months  longer  than  in  this  case.  It  will  be  noted,  however,  that 
in  this  case  it  is  expressly  admitted  that  there  was  not  at  any  time 
actual  occupancy  of  the  premises  by  the  defendants  from  the  time  of 
the  purchase  till  the  date  of  the  levy.  In  that  case  the  defendant  testi- 
fied, and  the  court  quotes  from  his  testimony  the  following  language, 
"I  built  every  day  as  soon  as  I  got  a  little  money  ahead."  The  court 
evidently  took  the  view  of  the  case  that  the  defendant's  delay  in  the 
construction  of  his  dwelling  house  was  due  solely  to  his  poverty,  and 
that  he  was  all  the  time  making-  a  determined  effort  to  actually  fit  the 
premises  for  occupation  by  himself  and  family.  He  not  merely  had 
the  purpose  in  his  mind  to  make  the  lot  his  homestead,  blit  was  actu- 
ally at  work,  from  time  to  time,  on  the  lot,  preparing  it  for  a  home. 


102  HOMESTEADS 

In  the  case  of  Swenson  v.  Kichl,  21  Kan.  533,  the  syllabus  of  the 
case  is  as  follows:  "(1)  Homestead  occupation.  Occupation,  actual 
or  constructive,  is  essential  to  give  the  character  of  homestead  to 
premises.  (2)  *  *  *  Intent  when  purchased.  While  occupation 
need  not  always  be  instantaneously  contemporaneous  with  purchase  to 
create  a  homestead,  yet  the  purchase  must  always  be  with  the  intent 
of  present,  and  hot  simply  of  future,  occupancy."  In  that  case  the  land 
was  purchased  by  the  execution  debtor  on  November  13,  1876.  The 
judgment  on  which  the  execution  was  issued  was  rendered  in  1873. 
One  execution  was  issued  February  5,  1877,  and  another  February  23, 
1877.  The  sale  was  made  under  the  latter  execution.  There  was  a 
house  on  the  land,  but  the  defendant  failed  to  occupy  it  as  a  residence 
for  more  than  a  year  after  the  purchase,  and  in  that  case  Mr.  Justice 
Brewer,  in  the  opinion,  says :  "  'Occupied  as  a  residence  by  the  family 
of  the  owner,'  is  the  language  of  the  constitution  defining  a  homestead 
exemption.  We  are  aware  that  occupancy  is  not  always  possible  at 
the  instant  of  purchase,  and  that,  as  we  have  heretofore  said,  a  reason- 
able time  is  allowable  in  which  to  prepare  for  and  to  complete  the 
removal  and  occupation  of  the  intended  homestead,  but  the  purchase 
must  be  for  the  purpose  and  with  the  intent  of  present,  and  not  simply 
of  future,  use  as  a  residence." 

In  the  case  of  Farlin  v.  Sook,  26  Kan.  398,  it  was  held:  "Under 
the  homestead  exemption  laws  no  person  can  hold  property  exempt 
from  execution  or  forced  sale  unless  the  property  is  'occupied  as  a 
residence  by  the  family  of  the  owner.'  Therefore,  where  the  owner  of 
the  property  resides  upon  the  same,  but  his  family,  consisting  of  a 
wife  and  children,  have  never  been  in  Kansas,  but  reside  in  Illinois, 
and  it  is  not,  and  never  has  been,  the  intention  of  the  owner  to  bring 
them  to  Kansas,  or  to  have  them  reside  upon  the  property,  held,  that 
the  owner  cannot  hold  the  property  exempt  from  execution  and  forced 
sale  under  the  homestead  exemption  laws."  In  the  case  of  Koons  v. 
Rittenhous,  28  Kan.  359,  it  appeared  that  a  husband  and  wife  resided 
in  New  York  in  1871.  The  husband,  desiring  to  change  his  place  of 
residence,  came  to  Kansas,  and  purchased  real  estate,  and  resided 
thereon  for  about  four  years,  then  sold  the  same,  and  executed  a  deed 
therefor,  representing  himself  to  be  a  single  man.  About  a  year  after- 
wards the  wife  came  to  Kansas,  and  thereafter  resided  upon  the  land 
with  her  husband,  and  it  had  been  at  all  times  the  intention  of  the 
husband  and  wife  that  she  should  at  some  time  come  to  Kansas,  and 
reside  upo'n  the  land  with  him.  It  was  held  that  the  land  had  never 
been  occupied  as  a  residence  by  the  family  of  the  owner  in  accordance 
with  the  exemption  law,  and  that  the  deed  from  the  husband  alone 
was  therefore  not  void.  Again,  in  the  case  of  Bradford  v.  Trust  Co., 
47  Kan.  587,  28  Pac.  702,  in  concluding  the  opinion.  Chief  Justice 
Horton  says:  "Under  the  constitution,  there  must  be  occupancy  as 
a  residence  by  some  one  of  th^  family  of  the  owner  to  constitute  a 
homestead." 


HOW  ACQUIRED  103 

We  do  not  think  there  is  any  real  conflict  in  the  authorities  cited, 
nor  do  we  think  that  the  Michigan  case  goes  to  the  limit  which  the 
plaintiff  in  error  asks  us  to  reach  in  this  case.  Whatever  our  views 
might  be  as  to  the  propriety  of  allowing  a  debtor  to  hold  a  tract  of 
land  for  a  homestead,  whether  occupied  or  not,  we  are  bound  to  de- 
clare the  law  as  we  find  it,  and,  while  this  court  in  the  cases  cited 
has  given  the  constitutional  provision  a  liberal  construction  for  the 
purpose  of  fully  securing  to  needy  debtors  the  beneficent  exemption 
secured  to  them  by  the  constitution,  yet  we  may  not  wholly  dispense 
with  the  requirement  of  occupancy.  Can  it  be  said  that  these  lots, 
though  vacant  and  wholly  unoccupied  for  a  period  of  more  than  two 
years,  were  in  the  constructive  occupancy  of  the  defendants,  because 
they  were  purchased  with  the  proceeds  of  a  former  homestead,  and 
the  defendants  intended,  as  soon  as  they  should  be  able  to  build  there- 
on, to  occupy  them?  If  we  hold  these  lots  to  have  been  a  homestead 
during  all  this  time,  by  what  course  of  reasoning  can  we  ever  fix  a 
limit  within  which  actual  occupancy  must  take  place?  The  admission 
contained  in  the  record  that  the  defendants  never  occupied  the  lots  or 
premises  in  question  herein  from  the  time  they  were  purchased  by 
the  defendants,  in  March,  1887,  up  to  the  time  subsequent  to  the  mak- 
ing of  the  levy  herein,  (which  was  on  August  19,  1889,)  and  that  at 
the  time  of  the  levy  the  premises  were  vacant  and  unoccupied,  seems 
to  us  to  be  decisive  of  this  case ;  and  that  the  defendants  have  admitted 
that  occupancy  by  the  family  of  the  defendants  did  not  exist,  and 
therefore  the  defendants  cannot  claim  the  premises  exempt  to  them  as 
a  homestead.  The  fact  that  the  defendants  took  possession  of  the 
lots  and  constructed  a  house  thereon  after  the  levy  of  the  execution 
cannot  of  itself  defeat  the  lien  of  the  judgment.  Bullene  v.  Hiatt,  12 
Kan.  98.  The  rights  of  the  parties  were  fixed  at  the  time  of  the  levy, 
and  no  subsequent  act  of  the  debtor  could  change  them. 

We  find  no  error  in  the  rulings  of  the  district  court,  and  its  orders 
will  be  affirmed.    All  the  justices  concurring. 


McKAY  V.  GESFORD. 

(Supreme  Court  of  California,  1912.    163  Cal.  243,  124  Pac.  1016,  41  L.  R.  A. 
[N.    S.]  303,  Ann.   Cas.  1913E,   1253.) 

In  Bank.  Appeal  from  Superior  Court,  Modoc  County;  John  E. 
Raker,  Judge. 

Action  by  Rose  McKay,  as  special  executrix  of  Julia  D.  Ferguson, 
deceased,  against  Frances  Helen  Gesf ord.  Judgment  for  plaintiff,  and 
defendant  appeals.     Reversed  and  remanded,  with  directions. 

Per  Curiam.  This  action  is  in  ejectment.  It  was  brought  by  plain- 
tiff as  special  administratrix  of  the  estate  of  Julia  D.  Ferguson,  de- 
ceased, claiming  that  certain  real  property  belonged  to  the  estate  of  her 
intestate. 


104  HOMESTEADS 

Defendant  admitted  that  the  property  in  question  had  originally  been 
the  separate  property  of  Julia  D.  Ferguson,  but  averred  and  showed 
that  Julia  D.  Ferguson,  while  the  wife  of  A.  H,  Ferguson  and  while 
she  with  her  husband  was  residing  in  the  house  upon  the  land  in  contro- 
versy, filed  her  declaration  of  homestead  for  the  joint  benefit  of  her- 
self and  her  husband.  Julia  D.  Ferguson  having  died,  it  is  conceded 
that  the  property  passed  to  the  surviving  husband  (Civ.  Code,  §§  1263, 
1265 ;  Code  Civ.  Proc.  §§  1474,  1475),  if  at  the  time  of  her  death  there 
was,  under  her  homestead  declaration,  a  valid  subsisting  homestead  up- 
on the  property.  Defendant  and  appellant  is  the  grantee  of  the  hus- 
band, claiming  title  by  deed  executed  by  him  after  the  death  of  his 
wife.  The  court  made  voluminous  findings,  and  from  them  reached 
the  conclusion  that  in  law  the  homestead  declaration  was  invalid. 
Judgment  passed  for  plaintiff,  and  from  that  judgment  and  upon  the 
judgment  roll  defendant  appeals,  contending  that  the  findings  do  not 
support  the  judgment. 

The  findings  are  that  in  1884  Julia  D.  Ferguson,  then  Julia  D.  Ed- 
wards, a  spinster,  owned  the  land  in  controversy,  and  in  1884  con- 
structed a  building  thereon  consisting  of  four  rooms  "as  and  for  a 
hotel,  and  to  keep  boarders  and  lodgers  as  she  could  accommodate." 
In  1888  she  married  A.  H.  Ferguson.  At  the  time  of  her  marriage  she 
was  residing  "on  said  premises  in  the  hotel  building  thereon,  and  con- 
tinued to  keep  such  boarders  and  lodgers  as  could  be  accommodated  in 
said  hotel  building,  and  to  run  said  hotel  and  hotel  business  with  all  the 
customers,  boarders  and  lodgers  that  could  be  obtained."  In  1891  or 
1892  she  "built  two  additional  rooms  onto  said  hotel  building."  She 
continued  thus  in  occupancy,  and  use  of  the  premises  until  her  death. 
After  her  marriage  with  her  husband  in  1888  she  with  her  husband 
continuously  resided  upon  the  premises  and  "in  the  hotel  building 
thereon,"  and  this  was  their  sole  and  only  home  and  residence.  She 
was  so  residing  with  her  husband  upon  the  premises,  when  in  1894  she 
made  the  homestead  declaration  in  due  and  regular  form,  claiming  the 
premises  as  a  homestead  for  the  joint  benefit  of  herself  and  her  hus- 
band. This  homestead  declaration  was  duly  acknowledged  and  record- 
ed. "From  the  time  of  the  erection  of  said  hotel  building  on  said 
premises  described  in  the  complaint,  in  the  year  1884  and  up  to  the  1st 
day  of  January,  1895,  the  said  Julia  D.  Ferguson  conducted  a  hotel  on 
said  premises,  and  her  residence  upon  said  premises  and  in  said  build- 
ing was  but  incidental  to  the  running  of  said  hotel,  and  that  the  said 
building  and  premises  were  used  primarily  and  principally  as  and  for  a 
hotel,  and  not  otherwise."  During  all  of  this  time  "Julia  D.  Ferguson 
performed  the  principal  labor  necessary  to  keep  the  said  hotel,  did  the 
cooking  and  waiting  on  table,  and  otherwise  attended  to  the  wants  of 
her  boarders  and  lodgers ;  but  at  times  hired  a  cook  and  waiter  girls, 
and  other  help,  when  necessary  to  run  said  hotel,  and,  after  her  mar- 
riage to  the  said  A.  H.  Ferguson,  the  said  A.  H.  Ferguson  when  not 
otherwise  engaged  would  give  his  help  and  assistance  to  his  wife  in 


HOW   ACQUIRED 


105 


and  about  the  said  hotel  in  doing  the  work  and  in  conducting  the  same. 

*  *  *  Said  hotel  building  was  not  dedicated  to  residence  purposes 
primarily,  and  was  actually  used  by  said  Julia  D.  Ferguson  and  was 
occupied  for  business  purposes  for  the  accommodation  of  the  public. 

*  *  *  No  particular  room  or  rooms  on  the  premises  were  reserved 
for  the  exclusive  use  of  said  Julia  D.  Ferguson  and  her  husband,  or  ei- 
ther of  them,  but  that  she  and  her  husband  used  any  of  them  for  them- 
selves as  was  convenient,  when  not  needed  to  be  used  by  their  boarders 
and  lodgers,  and  that  no  particular  portion  of  the  premises  was  used 
exclusively,  primarily,  or  principally  for  a  home  by  either  of  them. 

*  *  *  A  sign  bearing  the  words  'Star  Hotel'  was  continually  kept 
on  the  building  from  the  time  of  its  construction,  and  a  bell  was  rung 
at  regular  intervals  at  meal  hours  to  call  persons  to  meals ;  that  occa- 
sionally advertisements  of  the  Star  Hotel  were  published  in  a  newspa- 
per by  the  said  Julia  D.  Ferguson,  and  that  Julia  D.  Ferguson  solicited 
many  of  the  business  men  of  the  town  to  send  her  patronage  to  her 
hotel."  At  no  time  were  the  premises  of  a  greater  value  than  $1,000. 
The  residence  of  Julia  D.  Ferguson  before  her  marriage  and  of  herself 
and  her  husband  after  their  marriage  upon  the  premises  in  question 
"had  been  and  was  but  incidental  to  the  running  of  the  hotel  business 
and  conducting  of  a  hotel  business  thereon ;  and  the  said  building  on 
said  premises  was  used  and  occupied  by  said  Julia  D.  Ferguson  and  by 
said  Julia  D.  Ferguson  and  said  A.  H.  Ferguson,  at  all  the  times  herein 
specified  and  found  in  these  findings,  primarily  and  principally  and 
chiefly  as  and  for  a  hotel  to  accommodate  the  public,  and  not  otherwise. 

Finding  20:  "That  said  lands  and  premises,  together  with  the  build- 
ing thereon  known  as  the  Star  Hotel,  being  occupied  and  used  as  here- 
inbefore found,  primarily  and  principally  and  chiefly  as  and  for  a  hotel 
and  doing  a  hotel  business,  and  the  residence  of  the  said  Julia  D.  Fer- 
guson and  A.  H.  Ferguson  in  said  hotel  and  on  said  lands  and  premises 
being  but  incidental  at  all  times  to  the  running  of  said  hotel  and  not 
primarily  and  principally  as  a  home,  said  house  known  as  the  Star  Ho- 
tel, and  the  land  and  premises  which  it  occupied,  being  the  lands  and 
premises  described  in  the  complaint,  was  not,  nor  was  any  part  there- 
of, impressed  as  a  homestead  and  with  the  homestead  character  as 
homestead  property,  and  was  not  a  valid  homestead.  And  said  build- 
ing known  as  the  Star  Hotel,  and  the  premises  being  occupied  and  used 
as  hereinbefore  found  could  not  be  impressed  with  the  title  and  char- 
acter of  a  valid  homestead  interest,  nor  was  it  thus  impressed,  and  it 
did  not  exist  as  a  valid  or  any  homestead  of  said  Fergusons  or  of  ei- 
ther of  them." 

All  of  the  above  quotations  are  from  the  findings,  and  by  finding  20 
quoted  in  extenso  it  will  be  seen  that  the  court  there  makes  its  ultimate 
finding  of  fact  from  the  probative  facts  previously  found.  It  is,  of 
course,  well  settled  that  a  general  and  ultimate  finding  such  as  that  de- 
clared in  finding  20  which  is  drawn  as  a  conclusion  from  facts  previ- 
ously found  cannot  stand  if  the  specific  facts  upon  which  it  is  based  do 


106  HOMESTEADS 

not  support  it.  Sav.  &  Loan  Socv.  v.  Burnett,  106  Cal.  540,  39  Pac. 
922;  McDonald  v.  Randall,  139  Cal.  254,  72  P?c.  997. 

The  question,  then,  before  us  is  whether  the  ultimate  finding  of  the 
court,  namely,  that  by  reason  of  the  facts  previously  found  the  proper- 
t)'-  could  not  be  impressed  with  the  homestead  characteristic  is  or  is  not 
supported.  It  was  recognized  at  a  very  early  day  that  questions  of 
difficulty  would  arise  under  our  homestead  law  touching  the  character 
of  the  property  sought  to  be  exempted  under  its  provisions.  Ackley 
V.  Chamberlain,  16  Cal.  181,  76  Am.  Dec.  516.  It  is  there  said  "that 
the  question  whether  property  devoted  chiefly  to  business  purposes  can 
be  subjected  to  a  homestead  claim  is  full  of  embarrassment."  But, 
when  it  is  borne  in  mind  that  the  homestead  law  is  a  beneficent  law 
calling  for  liberal  construction  (Heathman  v.  Holmes,  94  Cal.  291,  29 
Pac.  404),  we  think  all  difficulty  will  be  Removed  and  all  doubt  resolved 
by  the  following  suggestion :  If  under  these  identical  circumstances 
of  ownership  of  the  property,  of  the  construction  of  the  building  there- 
on, and  of  the  use  of  that  building  Mrs.  Ferguson,  instead  of  being  a 
married  woman  with  a  husband,  had  been  a  widow  with  minor  children 
to  support,  and  an  attack  had  been  made  upon  a  declaration  of  home- 
stead which  she  had  duly  made  and  recorded  upon  the  property,  would 
any  court  say,  or  would  any  one  say,  that,  notwithstanding  that  it  was 
the  residence  and  sole  and  only  home  of  herself  and  babies,  it  could 
not  be  impressed  with  the  homestead  characteristics  because  the  prin- 
cipal purpose  and  use  of  the  premises  was  its  conduct  by  her  as  a  hotel 
or  boarding  house  in  order  that  she  might  thus  support  herself  and 
babies  and  give  them  a  home  ?  But  the  law  is  no  different  if  you  sub- 
etitute  a  husband  for  the  babies.  The  dominant  and  controlling  fact 
still  remains  that  this  was  the  residence  and  home  of  the  family,  that 
it  was  suitable  for  the  purpose,  and  was  used  for  the  purpose. 

We  are  not  in  this  case  embarrassed  by  difficulties  which  have  arisen 
in  other  cases  where  the  character  of  the  business  maintained  is  one 
entirely  foreign  to  the  conception  of  a  home,  if  not  repugnant  to  it — 
such  a  case,  for  example,  as  is  instanced  by  Chief  Justice  Field  in  Ack- 
ley v.  Chamberlain,  supra,  of  an  effort  to  impress  a  gas  factory  with 
homestead  characteristics  because  the  owner  lived  in  it.  Here  the  very 
business  which  was  carried  on  was  conducted  for  the  purpose  of  main- 
taining the  home,  for,  if  this  be  not  so,  then  it  must  follow  that  any 
widow  seeking  to  support  herself  and  perhaps  her  children  by  taking 
boarders  or  lodgers  under  circumstances  where  it  can  be  truly  said 
that  the  principal  business  conducted  upon  the  premises  is  that  of  a 
lodging  house  or  a  boarding  house  cannot  have  a  homestead,  although 
she  is  conducting  this  very  business  so  as  to  maintain  herself  and  her 
offspring  in  a  home,  ^ach  case  of  this  character  stands  by  itself  and 
is  to  be  governed  by  its  own  facts.  Our  own  cases  have  passed  recent- 
ly under  review  in  Estate  of  Levy,  141  Cal.  646,  75  Pac.  317,  99  Am. 
St.  Rep.  92.  Without  again  reviewing  them,  it  is  sufficient  to  refer  to 
this  case.    Therein,  after  extended  consideration  of  our  decisions,  and 


HOW   ACQUIRED  107 

amongst  them  Heathman  v.  Holmes,  94  Cal.  291,  29  Pac.  404,  where 
it  is  said,  "Using  a  building  partly  or  even  chiefly  for  business  pur- 
poses, or  renting  part  of  it,  is  not  inconsistent  with  the  right  of  home- 
stead, provided  it  is  and  continues  to  be  the  bona  fide  residence  of  the 
family"  this  court  said :  "These  cases  are  all  authority  for  the  proposi- 
tion that,  if  a  building  is  the  actual  bona  fide  residence  of  a  party,  he 
may  legally  select  it  and  the  land  on  which  it  is  situated  as  a  home- 
stead, even  though,  incidentally,  a  part  thereof,  no  matter  how  large, 
may  be  used  by  him  for  other  purposes  than  those  of  family  residence. 
There  is  no  decision  of  this  court  in  conflict  with  this  view." 

Under  the  rule  of  liberal  construction  which  it  has  been  repeatedly 
declared  should  be  extended  to  homestead  laws,  in  every  permissible 
'  case  where  the  premises  are  the  bona  fide  home  of  the  parties,  it  should 
be  held  that  the  business  conducted  within  the  premises  is  not  the  para- 
mount and  principal  purpose,  but  the  incidental  and  subordinate  pur- 
pose ;  that  the  home  is  the  main  thing,  not  the  business ;  that  the  busi- 
ness is  conducted  to  enable  the  parties  to  maintain  a  home,  and  not 
that  the  parties  are  incidentally  inhabiting  the  premises  for  the  put- 
pose  of  maintaining  the  business.  Especially  is  this  true  in  such  a  case 
as  the  one  at  bar,  where  it  appears  from  the  findings  that  the  parties 
during  all  their  married  life  never  had  any  other  home  than  their  six- 
room  hotel.  Nor  is  it  of  determinative  import  that  they  occupied  one 
or  another  of  these  six  rooms  or  shifted  themselves  about  as  the  exi- 
gencies of  their  business  deinanded.  In  some  cases  the  actual  occu- 
pancy of  a  room  or  rooms  in  a  building  has  become  important  as  evi- 
dence showing  residence.  These  were  cases  like  Skinner  v.  Hall,  69 
Cal.  195,  10  Pac.  406,  and  Heathman  v.  Holmes,  94  Cal.  291,  29  Pac. 
404,  but  in  this  case  the  permanent  occupancy  of  one  or  another  room 
is  of  no  material  significance,  since  it  is  shown  that  these  spouses  either 
lived  and  made  their  home  and  residence  upon  the  premises  in  con- 
troversy, or  they  lived  and  made  their  home  and  residence  nowhere. 

It  follows  from  the  foregoing  that  the  ultimate  finding  of  the  court 
to  the  effect  that  the  property  could  not  be  impressed  with  the  charac- 
teristics of  a  homestead  is  not  supported  by  the  specific  facts  upon 
which  the  finding  is  based,  and  that  the  judgment  itself  is  therefore 
unsupported  by  the  findings.  Wherefore  the  judgment  appealed  from 
is  reversed  and  the  cause  remanded,  with  directions  to  the  trial  court 
to  enTer  its  judgment  for  the  appellant. 

BE;ATTy,  C.  J.,  does  not  participate  in  the  foregoing. 


108  HOMESTEADS 


III.  Loss  of  Homestead  • 


ROUSE  V.  CATON. 

(Supreme  Court  of  Missouri,  Division  No.  1,  1902.    168  Mo.  288,  67  S.  W.  578, 

90   Am.   St.   Rep.   456.) 

Error  to  circuit  court,  Linn  county ;   John  P.  Butler,  Judge. 

Suit  by  J.  W.  Rouse  against  Harry  L.  Caton  and  others.  From  a 
decree  for  plaintiff,  defendants  bring  error.  Affirmed. 
"TjRace;,  p.  J.  The  defendants  in  this  case  are  Luke  T.  Caton  and  his 
two  sons,  Leo  T.  Caton  and  Harry  L.  Caton.  By  deed  dated  August 
26,  1895,  acknowledged  September  5,  1895,  and  recorded  on  the  20th 
of  July,  1896,  the  said  Luke  T.  Caton  and  wife  conveyed  to  the  said 
Leo  T.  Caton  and  Harry  L.  Caton  the  E.  V^.  of  the  S.  E.  M  and  the  S. 
W.  14  of  the  S.  E.  Y^r  of  section  16,  and  the  N.  E.  J4  of  section  21, 
in  township  58,  range  18,  in  Linn  county,  containing  280  acres.  On 
the  23d  of  July,  1896,  the  plaintiff,  J.  W.  Rouse,  instituted  a  suit  by 
attachment  in  the  circuit  court  of  said  county  against  the  said  defend- 
ant Luke  T.  Caton,  which  was  duly  levied  on  said  lands,  and  which 
was  thereafter  duly  sustained,  and  therein,  on  the  26th  of  April,  1897, 
the  plaintiff  obtained  judgment  against  the  said  Luke  T.  Caton  in  the 
sum  of  $4,600.57  and  costs.  In  pursuance  of  an  execution  issued  on 
this  judgment,  the  said  real  estate  was  duly  sold,  and  the  plaintiff  became 
the  purchaser  thereof  for  the  sum  of  $2,000,  received  a  sheriff's  deed 
therefor,  and  thereafter  instituted  this  suit. 

The  petition  is  in  two  counts, — the  first  in  the  nature  of  a  bill  in 
equity  to  set  aside  said  deed  of  Luke  T.  Caton,  of  date  August  26, 
1895,  on  the  ground  that  it  was  made  without  consideration,  and  for 
the  purpose  of  hindering,  delaying,  and  defrauding  his  creditors,  and 
the  second  in  ejectment,  to  recover  possession  of  the  premises.  The 
finding  on  both  counts  was  in  favor  of  the  plaintiff,  and,  defendants' 
motion  for  rehearing  and  new  trial  having  been  overruled,  they  bring 
the  case  here  by  writ  of  error. 

The  facts  of  this  case,  so  far  as  they  can  be  made  out  from  the  im- 
perfect transcript  of  plaintiffs  in  error,  which  contains  but  a  fragment 
of  the  evidence,  eked  out  by  that  of  the  defendant  in  error,  seem  to  be 
about  as  follows : 

In  1890  Luke  T.  Caton  was  the  owner  of  the  280  acres  of  land  in 
controversy,  which  in  connection  with  another  40-acre  tract,  the  title 
to  which  was  in  his  wife,  constituted  his  home  place,  on  which  he  resid- 
ed with  his  family.  lie  owned  other  lands  and  a  one-half  interest  in  a 
saloon  in  the  town  of  Bucklin,  some  two  or  three  miles  distant  from 
his  home  farm,  and  some  personal  property.     He  was  then  in  com- 

6  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  70. 


LOSS   OF   HOMESTEAD  109 

fortable  circumstances,  and  entirely  solvent.  In  the  fall  of  that  year 
he  and  his  wife  signed  and  acknowledged  a  deed  conveying  the  home 
farm  to  one  John  C.  Whittaker,  and  a  few  days  thereafter  the  said 
Whittaker  signed  and  acknowledged  a  deed  conveying  said  premises 
to  Fannie  Caton,  the  wife  of  the  said  Luke  T.  Caton,  and  his  two  sons, 
Leo  T.  Caton  and  Harry  L.  Caton.  These  deeds  were  never  recorded, 
and  remained  in  the  possession  or  under  the  control  of  the  said  Luke 
T.  and  his  wife  from  the  time  they  were  so  signed  until  they  were  pro- 
duced on  the  trial  of  this  cause.  At  the  time  these  deeds  were  so  sign- 
ed and  acknowledged  his  son  Leo  was  aged  about  20  years,  and  his  son 
Harry  was  about  9  years  old.  It  is  conceded  that  these  deeds  were 
without  valuable  consideration.  As  counsel  for  defendants  say  in 
their  brief,  "This  roundabout  transaction  was  only  to  avoid  a  direct 
conveyance  to  the  wife."  Afterwards  the  deed  in  controversy,  con- 
veying the  280  acres  aforesaid  to  the  said  Leo  T.  and  Harry  L.  Caton, 
was  signed  by  the  said  Luke  T.  Caton  and  wife,  and  acknowledged  on 
the  5th  day  of  September,  1895.  This  deed  was  also  without  any  valu- 
able consideration,  and  remained  in  the  possession  and  under  the  con- 
trol of  the  said  Luke  T.  and  his  wife  until  it  was  filed  for  record  on  the 
20th  of  July,  1896. 

Up  to  the  time  of  the  filing  of  this  deed  for  record  Luke  T.  Caton  al- 
ways claimed  and  treated  this  land  as  his  own,  gave  it  into  the  asses- 
sor, paid  the  taxes  on  it,  and  incumbered  it  by  mortgage,  and  was  con- 
sidered by  every  one  deahng  with  him  as  its  owner,  and  neither  Leo  T. 
nor  Harry  L.  ever  made  any  claim  of  ownership  to  it.  In  the  spring  of 
1891  Luke  T.  Caton,  with  his  family,  except  his  son  Leo,  moved  from 
his  home  farm  to  the  town  of  Bucklin,  distant  two  or  three  miles  there- 
from, where  he  and  his  family  continued  thereafter  to  reside  until 
about  the  middle  of  May,  1897,  when  they  moved  back  to  the  home 
farm.  In  the  meantime  Leo  was  left  in  charge  of  the  farm,  its  stock, 
and  equipment,  with  the  understanding  between  him  and  his  father 
that  he  should  run  the  place,  and  if  anything  was  made  in  operating  it 
he  should  have  half  the  profits.  On  removing  to  Bucklin,  Luke  T. 
Caton  purchased  an  interest  in  a  flouring  mill  in  operation  there  and 
other  property,  and,  after  renting  for  a  short  time,  purchased  a  dwell- 
ing house  and  lot  on  the  3d  of  August,  1891,  into  which  he  then  moved 
with  his  family,  and  where  thereafter  they  continued  to  reside  until 
about  the  middle  of  May,  1897,  when  he  returned  to  the  farm.  The 
purchase  money  for  this  homestead  was  paid  by  Luke  T.  Caton,  but 
the  deed  was  taken  in  the  name  of  his  wife,  and  duly  recorded  Decem- 
ber 16,  1893.  Thus  the  said  Luke  T.  Caton  continued  living  with  his 
family  in  this  homestead  in  Bucklin,  carrying  on  his  farming,  milling, 
and  saloon  business,  from  the  spring  of  1891  until  the  fall  of  1895,  dur- 
ing which  time  he  incurred  an  indebtedness  in  excess  of  the  value  of 
all  his  property,  and  became  insolvent.  It  was  under  these  circum- 
stances that  the  deed  in  question  was  thereafter  made.  The  plaintiff's 
debt  was  one  of  the  many  incurred  by  him  during  this  period  on  the 


110  HOMESTEADS 

faith  of  his  ownership  of  this  280  acres  of  land  in  question,  and  other 
lands,  as  shown  by  the  records. 

No  error  is  assigned  upon  any  action  of  the  court  in  the  trial  of  the 
case.  But  a  reversal  of  the  decree  and  judgment  is  urged  on  the 
ground : 

First.  That  Luke  T.  Caton  had  a  homestead  in  this  land  which  was 
not  set  off  to  him  before  the  sale  under  the  execution,  hence  under  the 
rulings  of  this  court  in  Macke  v.  Byrd,  131  Mo.  682,  33  S.  W.  448,  52 
Am.  St.  Rep.  649;  Ratliff  v.  Graves,  132  Mo.  7(>,  33  S.  W.  450,  and 
Creech  v.  Childers,  156  Mo.  338,  56  S.  W.  1106,  the  sale  was  void. 
This  contention  is  not  tenable.  At  the  time  when  the  indebtedness  of 
Luke  T.  Caton  to  the  plaintiff  was  incurred,  when  he  was  sued  thereon 
by  attachment,  and  the  writ  levied  on  the  premises,  and  even  when 
judgment  therein  was  rendered  against  him,  he  was  living  with  his 
family  on  his  homestead  in  the  town  of  Bucklin.  This  was  none  the 
less  his  homestead  (as  he  declared  he  intended  it  to  be  at  the  time  he 
purchased  it)  because  he  took  the  deed  thereto  in  his  wife's  name. 
While  he  continued  to  own  the  farm  of  which  the  280  acres  sold  under 
execution  was  a  part,  and  in  which  he  formerly  had  a  homestead,  he 
had  abandoned  it  as  a  homestead  in  1891,  and  as  against  the  rights 
which  had  accrued  to  the  plaintiff  after  that  time,  and  before  his  re- 
turn to  it  in  1897,  he  had  no  homestead  right  therein.  It  requires  both 
ownership  and  occupancy  to  constitute  a  homestead,  and  no  head  of 
a  family  can  have  two  homesteads  at  the  same  time ;  neither  can  hus- 
band and  wife,  while  living  together,  each  have  a  separate  homestead 
at  the  same  time.  Thomp.  Homest.  &  Ex.  §§  225,  245,  246;  Freem. 
Ex'ns,  §  248;  15  Am.  &  Eng.  Enc'  Law,  pp.  566,  575,  602;  Associa- 
tion v.  Howard,  150  Mo.  445,  51  S.  W.  1046;  Peake  v.  Cameron,  102 
Mo.  568,  15  S.  W.  70;  Kendall  v.  Powers,  96  Mo.  142,  8  S.  W.  793,  9 
Am.  St.  Rep.  326 ;  Bunn  v.  Lindsay,  95  Mo.  250,  7  S.  W.  473,  6  Am. 
Rep.  48;   Finnegan  v.  Prindeville,  83  Mo.  517. 

Second.  That,  as  the  amount  plaintiff  bid  at  the  sale,  less  the  costs, 
was  credited  on  the  execution,  and  no  new  consideration  passed,  the 
plaintiff'  was  not  an  innocent  purchaser,  but  took  his  title  subject  to  all 
infirmities.  The  rule  of  caveat  emptor  applies,  and  the  unrecorded 
deeds  conveying  the  280  acres  by  Luke  T.  Caton  and  wife  to  Whittak- 
er,  and  from  Whittaker  to  Luke  T.  Caton's  wife,  and  his  sons  Leo  and 
Harry  Caton,  in  1890,  when  Luke  T.  Caton  was  entirely  solvent,  stand 
good  and  valid  as  against  the  plaintiff.  This  is  an  attempt  to  protect 
one  fraud  by  another.  It  is  true  that,  if  the  deeds  of  1890  had  been 
delivered  and  recorded  when  they  were  signed  and  acknowledged,  they 
would  have  vested  Luke  T.  Caton's  title  in  the  grantees  therein  named  as 
against  subsequent  creditors.  But  these  deeds  were  never  in  good  faith 
delivered  for  the  purpose  of  vesting  title  in  such  grantees,  but  ever  re- 
mained either  in  the  possession  or  under  the  dominion  and  control  of 
Luke  T.  Caton  from  the  day  of  their  date  until  they  were  produced  on 
the  trial  of  this  cause,  until  which  time  neither  plaintiff"  nor  any  other 


LOSS   OF  HOMESTEAD  111 

of  his  creditors  had  any  notice  of  their  existence,  and  were  purposely 
kept  off  the  records,  whereby  he  was  enabled,  on  the  faith  of  his  owner- 
ship of  these  and  other  lands,  to  incur  the  very  indebtedness  which 
he  now  seeks  to  defeat  by  them.  They  were  fraudulent  and  void  as  to 
plaintiff,  and  as  to  such  creditors  passed  no  title  as  against  the  plaintiff, 
and  the  court  committed  no  error  in  vesting  the  title  in  the  plaintiff  and 
in  awarding  him  the  possession  of  the  premises. 

The  decree  and  judgment  of  the  circuit  court  will  therefore  be  affirm- 
ed.   All  concur. 


112  ESTATES    LESS    THAN    FREEHOLD 


ESTATES  LESS  THAN  FREEHOLD 

(A)  Estates  for  Years 

I.  Leases  ^ 
1.  Must  Be;  in  Writing  When 


MATTHEWS  v.  CARLTON. 

(Supreme  Judicial  Court  of  Massachusetts,  1905.    189  Mass.  285,  75  N.  E.  637.) 

Appeal  from  Superior  Court,  Worcester  County. 

Action  of  contract  by  Robert  F.  Matthews  against  Herbert  E.  Carl- 
ton. Judgment  was  rendered  for  defendant  upon  agreed  facts,  and 
plaintiff  appealed.    Affirmed. 

Knowlton,  C.  J.  This  case  comes  before  us  on  an  agreed  state- 
ment of  facts,  by  which  it  appears  that,  in  the  early  part  of  June,  1904, 
the  defendant  "orally  agreed  to  hire  a  tenement  of  tlie  plaintiff 
*  *  *  at  $25  per  month,  beginning  on  the  1st  day  of  July,  1904." 
The  tenement  was  then  occupied  by  a  tenant,  who  was  to  hold  it 
until  July  1,  1904,  and  who  paid  the  plaintiff  his  rent  up  to  that  date. 
With  the  consent  of  this  tenant,  who  was  then  occupying  the  tene- 
ment, the  defendant  moved  a  part  of  his  goods  into  the  tenement.  The 
tenant  afterwards  moved  out,  and  the  defendant  moved  other  goods 
in,  but  subsequently,  before  the  1st  day  of  July,  moved  all  the  goods 
out  and  notified  the  plaintiff  that  he  should  not  take  the  tenement. 
The  question  is  whether  the  defendant  is  liable  to  the  plaintiff  for 
rent  for  the  month  of  July.  His  moving  a  part  of  his  goods  into  the 
house  in  June,  with  the  consent  of  the  tenant  then  in  possession,  and 
his  subsequent  removal  of  them  before  the  expiration  of  the  term  of 
the  tenant,  does  not  affect  his  rights.  He  was  not  in  possession  under 
his  contract  with  the  plaintiff,  and  he  never  became  a  tenant  of  the 
plaintiff.  He  never  entered  under  his  agreement,  but,  on  the  con- 
trary, before  the  time  when  his  term  was  to  begin  he  gave  the  plain- 
tiff notice  that  he  should  not  enter. 

By  Rev.  Laws,  c.  127,  §  3,  it  is  provided  that  an  estate  or  interest 
in  land,  created  without  an  instrument  in  writing  signed  by  the  gran- 
tor or  his  attorney,  shall  have  the  force  and  effect  of  an  estate  at  will 
only,  and  that  "no  estate  or  interest  in  land  shall  be  assigned,  granted, 
or  surrendered,  unless  by  such  writing  or  by  operation  of  law."  The 
oral  agreement,  therefore,  gave  the  defendant  no  estate  or  interest  in 
the  land,  and  under  this  section,  as  well  as  under  Rev.  Laws,  c.  74,  § 
1,  cl.  4,  no  action  could  be  maintained  for  the  enforcement  of  it. 

The  plaintiff's  declaration  contains  two  counts — one  for  so-called 

1  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  77. 


LEASES  113^ 

rent  or  for  use  and  occupation,  and  the  other  for  damages  for  a 
breach  of  the  oral  agreement.  The  first  count  cannot  be  maintained, 
because  the  relation  of  landlord  and  tenant  never  existed  between  the 
parties.  The  defendant  declined  to  become  the  plaintiff's  tenant  before 
the  time  fixed  for  the  beginning  of  the  term.  There  can  be  no  lia- 
bility of  this  kind  without  an  occupation  by  a  tenant,  actual  or  con- 
structive, as  well  as  a  contract,  express  or  implied.  Rogers  v.  Coy,  164 
Mass.  391,  41  N.  E.  652;  Bacon  v.  Parker,  137  Mass.  309-312;  Cen- 
tral Mills  V.  Hart,  124  Mass.  123;  Leonard  v.  Kingman,  136  Mass. 
123 ;  Merrill,  Adm.,  v.  Bullock,  105  Mass.  486 ;  Easthan  v.  Anderson, 
119  Mass.  526-531;  Larkin  v.  Avery,  23  Conn.  304.  The  second 
count  is  upon  an  agreement  which  is  within  the  statute  of  frauds. 
Rev.  Laws,  c.  74,  §  1,  cl.  4;  White  v.  Wieland,  109  Mass.  291;  Parker 
V.  Tainter,  123  Mass.  185. 

Judgment  for  the  defendant.^ 

2  The  following  note  is  appended  to  this  case  in  the  Northeastern  Reporter:  ' 
"A  parol  demise,  void  under  the  statute  of  frauds,  creates  a  tenancy  at  will 
only ;  but  this  may  be  changed  into  a  tenancy  from  year  to  year,  by  payment 
and  acceptance  of  rent;  but  a  subsequent  ratification,  so  as  to  make  it  a  valid 
lease,  must  be  in  writing.  Dumn  v.  Rothermel,  112  Pa,  272,  3  Atl.  800  (1886). 
An  oral  agreement  to  renew  a  lease  for  three  years  is  extinguished  by  a  sub- 
sequent written  lease  for  one  year.  Stuebben  v.  Granger,  63  Mich.  306,  29  N. 
W.  716  (18S6).  See,  also,  Kramer  v.  Amberg  (Sup.)  3  N.  Y.  Supp.  240  (1888). 
A  verbal  agreement  to  rent  for  one  year  at  a  certain  price  per  month,  and  for 
a  second  year  at  a  different  price  per  month,  creates  a  tenancy  from  year  to 
year,  and  not  at  will.  Schneider  v.  Lord,  62  Mich.  141,  28  N.  W.  773  (1886). 
A  lease  which  has  been  reduced  to  writing,  acted  on,  and  partly  performed,  is 
binding,  though  not  signed.  Farmers'  Loan  &  T.  Co.  v.  St.  Joseph,  etc.,  R.  Co. 
(C.  C.)  2  Fed.  117  (1880).  A  lease  which  is  void,  because  resting  in  parol,  may 
be  rendered  valid  for  the  full  term  by  part  performance.  Bard-  v.  Elston,  31 
Kan.  274,  1  Pac.  565  (1884)  ;  Wallace  v.  Scoggin,  18  Or.  502,  21  Pac.  558,  17  Am. 
St.  Rep.  749  (1890).  A  note  for  rent  given  by  a  lessee  under  a  parol  lease  is, 
with  letters  referring  to  it,  a  sufficient  memorandum  to  take  the  lease  out  of 
the  statute  of  frauds,  as  against  the  lessee.  Oliver  v.  Insurance  Co.,  82 
Ala.  417,  2  South.  445  (1886).  A  parol  lease  for  a  year  is  not  rendered  invalid- 
by  the  fact  that  it  is  to  commence  in  futuro,  and  thus  cannot  be  performed 
within  a  year.  McCroy  v.  Toney,  66  Miss.  233,  5  South.  392,  2  L.  R.  A.  847 
(1888).  A  tenancy  from  year  to  year  cannot  be  created  by  an  oral  agreement 
to  work  land  on  shares  for  a  term  of  five  years,  followed  by  occupancy  of  the 
land  for  two  years  under  the  agreement.  Unglish  v.  Marvin,  55  Hun,  45,  8 
N.  Y.  Supp.  283  (1889)." 

Bued.Cas.Real  Prop. — 8 


114  ESTATES    LESS   THAN    FREEHOLD 

II.  Rights  and  Liabilities  of  Landlord  and  Tenant  • 
1.  Under  Implied  Covenants 


DOYLE  V.  UNION  PAC.  RY.  CO. 

^Supreme  Court  of  United  States,  1893.     147  U.  S.  413,  13  Sup.  Ct.  333,  37 

L.  Ed.  223.) 

In  error  to  the  circuit  court  of  the  United  States  for  the  district 
of  Colorado. 

These  were  two  actions  brought  by  Marcella  Doyle  against  the 
Union  Pacific  Railway  Company,  one  of  them  being  for  personal  in- 
juries to  herself,  and  the  other  to  recover  for  the  death  of  her  chil- 
dren; such  injuries  and  death  being  caused  by  a  snowslide  which  de- 
stroyed the  house  in  which  she  was  living,  and  which  she  had  leased 
from  the  defendant  company.  There  were  verdict  and  judgment  for 
defendant,  and  plaintiff  appeals.    Affirmed. 

Mr.  Justice  Shiras  delivered  the  opinion  of  the  court. 

In  the  early  part  of  November,  A.  D.  1883,  Marcella  Doyle,  a  widow 
with  a  family  of  six  children,  agreed  with  the  Union  Pacific  Railway 
Company  to  occupy  the  company's  section  house  situated  on  the  line 
of  the  railroad  at  or  near  Woodstock,  in  the  county  of  Chaffee  and 
state  of  Colorado,  and  to  board  at  said  section  house  such  section  hands 
and  other  employes  of  the  company  as  it  should  desire  at  the  rate  of 
$4.50  per  week,  to  be  paid  by  the  persons  so  to  be  boarded,  and  the 
company  agreed  to  aid  her  in  collecting  her  pay  for  such  board  by 
retaining  the  same  for  her  out  of  the  wages  of  the  employes  so  to  be 
boarded. 

Mrs.  Doyle  moved  with  her  children  into  the  section  house,  and  con- 
tinued in  the  discharge  of  her  duties  as  boarding  housekeeper  until  the 
10th  day  of  March,  A.  D.  1884,  when  a  snowslide  overwhelmed  the 
section  house,  injured  Mrs.  Doyle,  and  crushed  to  death  the  six  chil- 
dren residing  with  her. 

Subsequently,  Marcella  Doyle  brought,  in  the  circuit  court  of  the 
United  States  for  the  district  of  Colorado,  two  actions  against  the 
Union  Pacific  Railway  Company, — one  for  her  personal  injuries;  the 
other  for  damages  suffered  by  her  in  the  loss  of  her  children, — and 
which  latter  action  was  based  on  a  statute  of  the  state  of  Colorado. 

The  actions  resulted  in  verdicts  and  judgments  in  favor  of  the  de- 
fendant company,  and  the  cases  have  been  brought  to  this  court  by 
writs  of  error.  As  the  cases  turn  upon  the  same  facts  and  principles 
of  law,  they  can  be  disposed  of  together. 

The  record  discloses  that  the  facts  of  the  case,  as  claimed  by  the  re- 

»  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  7S-S0. 


RIGHTS   AND   LIABILITIES    OF   LANDLORD    AND   TENANT  115 

spective  parties,  and  certain  admissions  by  the  defendant  company, 
were  stated  in  a  bill  of  exceptions,  and  upon  which  instructions  by  the 
court  were  given  which  are  made  the  subject  of  the  assignments  of 
error. 

The  bill  of  exceptions  was  as  follows : 

"Be  it  remembered  that  on  the  trial  of  this  cause,  at  the  November 
term,  A.  D.  1886,  of  the  said  circuit  court,  the  defendant  admitted,  and 
such  admissions  were  received  in  evidence  before  the  jury: 

"That  the  plaintiff  was  at  the  several  times  named  in  the  complaint  a 
widow  and  the  mother  of  the  said  Martin  Doyle,  Andrew  Doyle,  Chris- 
topher Doyle,  Catharine  Doyle,  Marcella  Doyle,  and  Maggie  Doyle, 
mentioned  and  named  in  the  complaint  as  the  children  of  the  plaintiff, 
and  as  having  each  and  all  been  killed  by  a  snowslide  at  Woodstock 
in  the  month  of  March,  A.  D.  1884. 

"That  her  husband  and  the  father  of  said  children  had  died  previous- 
ly to  their  death.  That  each  of  said  children  was  of  the  age  and  sex 
stated  in  the  complaint;  was  each  unmarried  and  had  no  child  nor 
children,  and  had  each  lived  with  their  said  mother,  making  their 
home  with  her,  up  to  the  time  of  their  death ;  and  were  each  then 
living  with  the  plaintiff,  aiding  and  assisting  her  in  and  about  making 
a  living,  and  in  and  about  her  duties  and  labors  in  the  keeping  -of  the 
section  house  of  the  defendant  at  Woodstock,  in  the  county  of  Chaffee 
and  state  of  Colorado,  where  said  children  were  killed.  That  said 
children  were  all  killed  while  in  said  section  house,  on  the  10th  day  of 
March,  A.  D.  1884,  by  a  snowslide,  which  then  and  there  occurred 
from  the  mountain  side  above  said  section  house.  That  said  section 
house  was  built  and  used  by  the  defendant  as  and  for  a  section  house 
and  a  place  at  which  the  section,  hands  of  the  defendant  who  should 
work  on  said  section  could  board  and  lodge. 

"That  on  or  about  the  5th  day  of  November,  A.  D.  1883,  at  the  in- 
stance and  request  of  the  defendant,  and  for  the  mutual  benefit  of 
herself  and  the  defendant,  the  plaintiff  undertook  and  agreed  with  the 
defendant  to  keep  for  it,  during  its  will  and  pleasure,  its  section  house 
situated  at  or  near  Woodstock,  on  the  line  of  its  railroad,  in  the  coun- 
ty of  Chaffee  and  state  of  Colorado.  That  by  the  said  agreeinent  be- 
tween her  and  the  defendant  the  plaintiff  was  to  provide  and  furnish 
board  at  said  section  house  for  such  section  hands  and  other  employes 
of  the  defendant  as  it  should  desire,  at  the  rate  of  four  and  one-half 
dollars  per  week,  to  be  paid  by  the  persons  so  furnished  with  such 
board ;  but  the  defendant  was  to  aid  and  assist  the  plaintiff  in  collecting 
her  pay  for  such  board  by  stopping  and  retaining  the  same  for  her  out 
of  the  wages  of  those  so  furnished  with  such  board.  That  plaintiff 
thereupon,  to  wit,  on  the  said  5th  day  of  November,  A.  D.  1883,  moved 
into  said  section  house  with  her  family,  and  entered  upon  the  discharge 
of  her  duties  as  the  keeper  thereof,  and  remained  there  in  the  dis- 
charge of  such  duties  until  the  occurrence  of  the  snowslide,  on  the 
10th  of  March,  A.  D.  1884.     That  the  defendant  did  not  at  any  time 


116  ESTATES    LESS    THAN    FREEHOLD 

notify  or  apprise  the  plaintiff  or  either  of  her  said  children,  or  cause 
her  or  either  of  them  to  be  notified  or  apprised,  of  the  danger  of  a 
snowslide  or  snowslides  or  of  the  liability  of  a  snowslide  or  snowslides 
at  such  place  where  said  section  house  then  was,  or  in  that  locality. 

"And  the  plaintiff,  further  to  maintain  the  issues  on  her  part,  intro- 
duced evidence  tending  to  show  that  said  section  house  was  a  one- 
story  frame  building,  and  was  constructed  in  1882,  about  the  time  that 
said  railroad  was  first  operated  in  that  section  of  the  country ;  was  situ- 
ated in  the  mountains,  near  the  base  of  a  high  and  steep  mountain,  and 
in  a  place  subject  to  snowslides,  and  dangerous  on  that  account.  That 
the  sides  of  the  mountain  at  the  base  of  which  was  the  house  in  ques- 
tion were  marked  by  the  tracks  of  former  snowslides,  but  only  those 
familiar  with  snowslides  and  their  effects  would  know  what  they 
meant.  That  the  defendant  was  aware  of  said  danger  at  and  before 
the  time  it  engaged  the  plaintiff  to  keep  its  said  section  house.  That 
the  plaintiff  and  her  said  children  had  never  before  resided  in  a  region 
of  country  subject  to  snowslides,  and  had  no  knowledge  of  snowslides 
or  of  their  indications,  or  of  the  dangers  incident  thereto,  and  was 
not  aware  of  the  particular  danger  in  question.  That  there  was  a 
prominence  or  hip  on  this  mountain  side,  about  ten  or  twelve  hundred 
feet  above  the  section  house,  which  cut  off  a  view  of  the  mountain  sid£ 
above  said  hip  from  the  section  house  or  its  immediate  vicinity.  That 
above  said  hip  there  was  a  large  depression  or  draw  on  the  mountain 
side  extending  from  said  hip  to  the  summit,  into  which  great  quantities 
of  snow  fell  and  drifted  during  the  winter  season  of  each  year,  thus 
tending  to  create  snowslides  of  danger  to  persons  in  said  section  house 
or  its  vicinity.  That  this  danger  was  not  apparent  even  to  a  person 
having  knowledge  of  snowslides  and  their  causes  without  a  view  or 
examination  of  this  mountain  side  above  said  hip.  That  the  altitude 
of  said  section  house  was  about  10,200  feet,  and  of  the  summit  of  said 
mountain  nearly  12,000  feet.  That  the  snowfall  there  was  great  in 
the  winter  season  of  each  year,  and  that  depressions  on  the  mountain 
side  were  filled  with  snow  by  drifting.  That  the  snowslide  of  March 
10,  1884,  which  killed  the  said  children,  proceeded  from  this  depres- 
sion above  said  hip.  That  a  snowslide  of  less  dimensions,  and  of  less 
scope  and  extent,  occurred  there  in  February,  1883,  in  the  same  place 
and  from  the  same  source,  which  reached  to  within  about  two  hundred 
feet  of  said  section  house,  and  of  which  the  defendant  had  knowledge 
at  the  time  thereof. 

"That  the  attention  of  the  superintendent  of  the  construction  of  said 
railroad  and  of  said  section  house  was  called  to  the  fact  of  such  danger, 
at  or  about  the  time  said  section  house  was  built,  by  one  of  the  civil 
engineers  of  said  defendant  who  assisted  in  locating  the  line  of  said 
railroad. 

"That  her  said  son  Andrew  Doyle  was  an  employe  of  the  defendant 
— a  section  hand  on  the  same  section  where  said  section  house  was  lo- 
cated— at  the  time  he  was  so  killed  by  said  snowslide.    That  the  plain- 


EIGHTS    AND   LIABILITIES   OF   LANDLORD   AND   TENANT  HT 

tiff  and  her  said  children  were  in  said  section  house  at  the  time  the 
said  children  were  killed,  and  that  neither  of  said  children  were  aware 
of  said  danger  before  the  said  snowshde  of  March  10,  1884,  occurred. 

"That  through  this  prominence  or  hip  on  the  mountain  side  there 
was  a  chasm  or  draw  from  twenty  to  thirty  feet  wide,  which  continued 
on  down  to  the  section  house,  but  became  wider  after  leaving  the  hip. 
That  with  this  draw  another  draw  united  about  midway  between  the 
section  house  and  the  said  hip,  and  formed  one  draw  from  their  point 
of  union  to  the  section  house. 

"That  this  mountain  is  a  part  of  the  range  of  mountains  known  as 
the  'Continental  Divide,'  which  divides  the  waters  of  the  Atlantic  from 
those  of  the  Pacific.  At  this  point  above  Woodstock  station  the  course 
of  the  mountain  is  nearly  east  and  west.  This  railroad  passes  this 
■mountain  by  means  of  a  tunnel  called  'Alpine  Tunnel,'  which  is  to  the 
westward  of  a  line  north  of  Woodstock,  and  descends  this  mountain  at 
a  heavy  grade,  along  the  side  thereof,  about  midway  between  the  sec- 
tion house  and  the  said  hip  on  the  'mountain,  (which  hip  is  termed  a 
'projection  of  rocks'  by  some  of  the  witnesses,)  and  passes  on  to  the 
eastward  of  Woodstock  a  considerable  distance,  where  it  turns,  and, 
forming  a  kind  of  horseshoe  shape,  runs  back  again  past  Woodstock, 
but  between  the  section  house  and  said  hip, — the  section  house  being 
below  and  distant  from  this  lower  track  about  two  hundred  and  thirty 
feet ;  and  the  two  tracks  forming  this  horseshoe  are  both  between  the 
section  house  and  said  hip,  and  on  a  direct  line  from  the  section  house 
up  to  the  hip.  The  two  tracks  are  about  five  hundred  feet  apart,  the 
upper  track  being  about  seventy  feet  higher  in  point  of  altitude  where 
they  cross  this  line  from  the  section  house  to  the  hip  on  the  moun- 
tain side  above.  That  there  was  a  water  tank  on  the  upper  side  of  the 
lower  track  fifty  or  sixty  feet  to  the  westward  of  the  section  house, 
which  water  tank  was  injured  by  the  snowslide  of  February,  1883. 

"That  the  snowslide  of  March  10,  1884,  spread  out  as  it  descended 
the  mountain,  so  that  where  it  passed  over  the  lower  railroad  track 
its  space  in  width  was  six  or  seven  hundred  feet,  and  the  section  house 
was  not  far  from  the  center  of  said  snowslide  track. 

"That  the  contour  of  this  mountain,  beginning  at  the  section  house 
and  ascending  the  mountain,  is  about  as  follows,  to  wit:  Above  the 
section  house  it  slopes  slowly  to  the  first  railroad  track;  then  there  is 
a  rockslide;  then  there  is  a  bench  above  that,  and  on  the  same  level 
of  the  upper  railroad  track,  and  above  that  a  steep  gorge,  and  on  each 
side  of  said  gorge  there  is  a  thin  belt  of  timber,  and  between  these 
belts  of  timber  and  along  the  gorge  there  is  a  space  from  three  to  four 
hundred  feet  in  width  of  nothing  but  rock,  with  a  very  steep  slope, 
and  above  this  slope  some  very  steep  rocks,  (the  hip  on  the  mountain 
side,)  and  above  this  hip  is  a  large  basin  or  depression  extending  on 
up  the  mountain  side  three  or  four  thousand  feet  long  to  the  summit 
of  the  mountain,  which  has  an  elevation  or  altitude  of  about  11,500 
feet,  the  mountain  side  above  the  hip  being  very  steep,  having  a  slope 


118  ESTATES    LESS   THAN    FREEHOLD 

of  more  than  thirty-three  degrees,  and  from  the  hip  down  there  is  quite 
a  precipitous  piece  of  rock,  not  perpendicular,  but  quite  steep,  and  after 
or  below  that  the  slope  is  at  an  angle  of  about  twenty-five  degrees. 
In  the  basin  above  the  hip  there  is  no  timber,  and  in  and  about  the 
section  house  there  is  a  space  of  eight  or  nine  hundred  feet  square  on 
which  there  is  no  timber  except  three  or  four  trees. 

"That  the  timber  on  the  mountain  side  was  sparse  and  scattered. 
That  only  a  few  trees  were  carried  down  by  the  snowslide.  That  snow- 
slides  do  not  always  follow  beaten  tracks  made  by  former  snowslides 
on  the  same  mountain  side,  but  frequently  depart  therefrom.  That 
the  snowslide  of  March  10,  1884,  separated  into  broken  fragments  or 
divisions  before  reaching  the  base  of  the  mountain,  one  of  which 
struck  the  section  house,  resulting  in  the  injuries  complained  of. 

"That  the  winter  of  1883-84  was  severer,  and  the  snow  fell  some 
deeper,  than  the  winter  previous  thereto,  and  that  it  snowed  heavily 
and  continuously  from  about  the  1st  of  March  to  the  10th  of  March, 
1884,  and  the  trains  had  ceased  to  run  on  account  of  the  snow.  That 
ordinarily  in  the  winter  season  the  snow  was  from  five  to  seven  feet 
deep  in  said  locality  in  places  where  it  did  not  drift,  and  after  it  had 
settled  compactly.  That  it  drifted  gre;itly,  filling  up  basins  and  de- 
pressions on  the  mountain  sides.  That  there  were  rockslides  and  ex- 
isting evidences  of  former  snowslides  on  this  mountain  side  above 
said  section  house. 

"That  the  snowslide  of  February,  1883,  deposited  snow  and  debris 
on  the  upper  track  of  the  railroad  above  said  section  house  from  twen- 
ty to  twenty-five  feet  deep ;  and  for  a  considerable  space  of  time  from 
then,  during  tlie  remainder  of  that  winter  and  the  following  spring, 
the  said  railroad  was  not  operated  on  account  of  the  snow. 

"And  the  defendant,  to  maintain  the  issues  on  its  part,  introduced 
evidence  tending  to  prove  that  said  section  house  was  built  below  the 
said  tracks  and  behind,  and  protected  by  a  thick  growth  of  timber 
above  and  between  said  section  house  and  the  mountain ;  that  there 
were  no  marks  or  tracks  of  former  snowslides  directly  above  or  in  the 
vicinity  of  said  section  house;  that  the  defendant  was  not  aware  of 
any  danger  from  snowslides  at  the  place  where  the  section  house  was 
built,  but,  on  the  contrary,  that  the  officers  of  the  company  had  care- 
fully examined  the  locality  where  the  same  was  built,  and  the  contour 
of  the  mountains  above  the  same  to  the  summit  of  the  range,  and  that 
said  section  house  was  built  at  that  place  because  the  officers  of  the 
company  thought  that  it  was  —  safe  place,  and  could  not  be  endan- 
gered by  snowslides,  which  were  apt  to  occur  in  that  part  of  the  coun- 
try ;  that  the  prominence  or  hip  spoken  of  was  a  protection  against 
snowslides  which  might  occur  on  the  mountain  sides  above  said  section 
house ;  that  an  examination  of  the  ground,  timber,  and  rocks  in  the 
vicinity  of  where  the  house  was  built,  and  above,  on  the  mountain 
side,  showed  that  there  had  not  been  a  snowslide  there  for  at  least 
two  hundred  years;  that  the  snowslide  of  March  10,  1884,  was  caused 


EIGHTS    AND   LIABILITIES    OF   LANDLORD    AND   TENANT  119 

by  a  storm  of  unprecedented  severity  and  duration,  and  that  the  same 
came  down  through  the  timber  above  said  house,  breaking  down  and 
carrying  with  it  standing  trees,  from  bushes  up  to  trees  two  feet  in 
diameter ;  that  the  snowshde  mentioned  as  occurring  in  February,  1883, 
came  down  a  considerable  distance  to  the  north  of  where  the  one  came 
down  in  1884,  and  that  the  snowslide  in  1883  did  no  damage  except 
to  cover  up  a  short  distance  of  the  railroad  track,  and  break  in  some 
boards  of  the  house  under  the  water  tank;  that  the  attention  of  the 
superintendent  of  construction  of  said  railroad  was  not  called  by  any 
one  to  the  fact  of  there  being  any  danger  from  snowslides  at  the  place 
where  said  section  house  was  built,  but  that  the  conversation  or  notice 
referred  to  was  in  regard  to  a  place  a  mile  or  more  further  up  Quartz 
creek;  that  the  said  Andrew  Doyle  had  been  an  employe  of  the  de- 
fendant as  a  section  hand,  but  had  quit  work  some  days  before  on  ac- 
count of  the  road  being  blockaded  by  snow,  and  all  attempts  to  open 
it  having  been  abandoned,  and  for  ten  days  or  more  before  the  snow- 
slide  no  work  whatever  was  being  done  by  defendant  on  said  road  for 
a  distance  of  several  miles  each  way  from  said  Woodstock;  that  said 
prominence  or  hip  on  the  mountain  side  mentioned  by  the  witnesses 
tended  to  protect  said  section  house  and  its  immediate  locality  from 
snowslides;  that  there  was  no  chasm  or  draw  immediately  above  said 
section  house,  and  that  whatever  formation  of  that  kind  there  was 
on  said  mountain  was  a  distance  of  two  hundred  feet  or  more  north 
of  said  section  house ;  that  said  section  house  was  broken  dovyn  by  said 
snowslide  of  March  10,  1884,  by  a  spreading  out  of  the  snow  as  it 
came  down  the  mountain,  and  that  said  section  house  was  on  the  south- 
erly side  of  said  snowslide ;  that  the  gorge  referred  to  is  simply  an 
opening  a  few  feet  wide  in  the  ridge  of  rock  referred  to  as  the  'hip' 
or  'prominence ;'  that  a  short  distance  above  said  prominence  the  gen- 
eral timber  line  of  the  country  is  reached,  above  which  no  timber  oc- 
curs; that  there  was  a  considerable  amount  of  timber  between  said 
section  house  and  the  first  railroad  track,  and  a  thick  growth  of  large 
timber  immediately  above  the  first  railroad  track,  extending  up  some 
distance  towards  the  second  track  of  the  loop,  and  some  scattering 
timber  above  the  upper  track;  that  there  are  no  rockslides  or  existing 
evidences  of  former  snowslides  on  the  mountain  sides  immediately 
above  said  section  house. 

"And  the  foregoing  was  all  the  evidence  in  the  case." 

To  the  answers  of  the  court  to  the  prayers  for  instructions,  and  to 
the  charge,  the  plaintiff  has  filed  13  assignments  of  error. 

The  twelfth  assignment  alleges  that  "the  circuit  court  erred  in  charg- 
ing the  jury  substantially  to  the  effect  that  they  must  find  for  the  de- 
fendant;" and  in  the  brief  of  the  plaintiff*  in  error  it  is  asserted  that 
the  answers  of  the  court  to  the  several  requests  for  instructions  were 
in  effect  directions  to  the  jury  to  find  for  the  defendant. 

Although,  in  point  of  fact,  the  court  did  not  give  the  jury  peremp- 
tory instructions  to  find  for  the  defendant,  but  left  the  cases  to  thera 


120  ESTATES    LESS   THAN    FRBEUOLD 

on  instructions  under  which  they  might  have  found  verdicts  for  the 
plaintiff,  yet  the  vaHdity  of  the  plaintiff's  exceptions  to  the  court's 
treatment  of  the  cases  may  be  conveniently  tested  by  assuming,  for 
the  present,  that  the  charge  and  instructions  legally  amounted  to  a 
direction  to  find  for  the  defendant.  If  an  examination  of  the  facts 
and  of  the  principles  of  law  involved  warrants  us  in  concluding  that 
the  court  would  have  been  justified  in  so  doing,  it  will  not  be  neces- 
sary to  consider  each  and  every  assignment  of  error,  nor  to  minutely 
scan  isolated  expressions  used  by  the  court. 

The  first  question  to  be  determined  is,  what  was  the  relation  be- 
tween the  plaintiff'  and  the  railway  company?  Was  Mrs.  Doyle  a  serv- 
"ant  or  employe  of  the  company,  aiding  in  the  transaction  of  its  business 
and  subject  to  its  directions,  or  was  she  a  tenant  at  will  holding  the 
premises  by  an  occupation  during  the  will  of  the  company?  The  facts 
averred  by  the  plaintiff  show  that  the  company  was  not  interested,  in 
a  legal  sense,  in  the  management  of  the  boarding  house;  did  not  re- 
ceive the  board  money,  pay  the  expenses,  take  the  profits,  or  suffer  the 
losses.  The  company  could  not  call  upon  her  for  any  account,  nor 
could  she  demand  payment  from  the  company  for  any  services  ren- 
dered by  her  in  carrying  on  the  boarding  house.  The  fact  that  the' 
company  agreed  to  aid  her  in  collecting  what  might  be  due  to  her 
from  time  to  time  by  the  boarders,  by  withholding  moneys  out  of  the 
wages  payable  to  them  by  the  railroad  company,  did  not  convert  Mrs. 
Doyle  into  a  servant  of  the  company,  or  change  her  relation  to  the 
company  as  a  tenant  at  will  of  the  company's  house.  Such  an  ar- 
rangement might  equally  have  been  made  if  Mrs.  Doyle  had  been  the 
owner  of  the  house.  The  court  below  was  not  in  error  in  holding 
that  the  relation  of  the  parties  was  that  of  landlord  and  tenant. 

If,  then,  such  was  the  relation  of  the  parties,  upon  what  principle 
can  a  liability  for  the  damages  occasioned  by  the  snowslide  be  put  upon 
the  company?  There  was  neither  allegation  nor  proof  of  fraud,  mis- 
representation, or  deceit  on  the  part  of  the  defendant  company  as  to 
the  condition  of  the  premises.  Indeed,  it  was  not  even  pretended  that 
the  catastrophe  was  in  any  way  occasioned  by  the  condition  of  the 
house. 

It  was,  indeed,  alleged  that  the  section  house  was  built  near  the 
base  of  a  high  and  steep  mountain,  and  in  a  place  subject  to  snowslides, 
and  dangerous  on  that  account ;  that  the  company  was  aware  of  said 
danger ;  that  the  plaintiff  and  her  children  had  never  before  resided  in  a 
region  of  country  subject  to  snowslides,  and  had  no  knowledge  of 
snowslides  or  of  their  indications,  or  of  the  dangers  incident  thereto ; 
and  that  the  company  did  not  at  any  time  notify  or  apprise  the  plain- 
tiff or  her  children  of  the  danger  of  snowslides  or  of  the  liability  of 
snowslides  at  such  place  where  said  section  then  was,  or  in  that  lo- 
cality; and  upon  this  alleged  state  of  facts  it  was  contended  that  the 
jury  liad  a  right  to  find  that  the.  railway  company  was  guilty  of  care- 


RIGHTS   AND  LIABILITIES   OF  LANDLORD   AND  TENANT  121 

lessness  or  disregard  of  duty  tovvards  the  plaintiff  such  as  to  make  it 
liable  in  these  actions. 

It  is,  however,  well  settled  that  the  law  does  not  imply  any  war- 
ranty on  the  part  of  the  landlord  that  the  house  is  reasonably  fit  for 
occupation;  much  less  does  it  imply  a  warranty  that  no  accident  should 
befall  the  tenant  from  external  forces,  such  as  storms,  tornadoes, 
earthquakes,  or  snowslides.  The  law  is  thus  stated  in  a  well-known 
work  on  Landlord  and  Tenant : 

"There  is  no  implied  warranty,  on  the  letting  of  a  house,  that  it  is 
safe,  well  built,  or  reasonably  fit  for  habitation;  or  of  land,  that  it 
is  suitable  for  cultivation,  or  for  any  other  purpose  for  which  it  was 
let ;  and  where  a  person  hired  a  house  and  garden  for  a  term  of  years, 
to  be  used  for  a  dwelling  house,  but  subsequently  abandoned  it  as  unfit 
for  habitation,  in  consequence  of  its  being  infested  with  vermin  and 
other  nuisances,  which  he  was  not  aware  of  when  he  took  the  lease, 
the  principle  was  laid  down,  after  an  elaborate  review  of  all  the  cases 
where  a  contrary  doctrine  seemed  to  have  prevailed,  that  there  is  no 
implied  contract  on  a  demise  of  real  estate  that  it  shall  be  fit  for  the 
purposes  for  which  it  was  let.  Consequently  an  abandonment  of  the 
premises  under  these  circumstances  forms  no  defense  to  an  action  for 
rent;  and  in  all  cases  where  a  tenant  has  been  allowed,  upon  sugges- 
tions of  this  kind,  to  withdraw  from  the  tenancy,  and  refuse  the  pay- 
ment of  rent,  there  will  be  found  to  have  been  a  fraudulent  misrepre- 
sentation or  concealment  as  to  the  state  of  the  premises  which  were 
the  subject  of  the  letting,  or  else  the  premises  proved  to  be  uninhabita- 
ble by  some  wrongful  act  or  default  of  the  landlord  himself.  The 
lessor  is  not,  however,  always  bound  to  disclose  the  state  of  the  premis- 
es to  the  intended  lessee,  unless  he  knows  that  the  house  is  really  unfit 
for  habitation,  and  that  the  lessee  does  not  know  it,  and  is  influenced 
by  his  belief  of  the  soundness  of  the  house  in  agreeing  to  take  it ;  for 
the  conduct  of  the  lessor  may,  in  this  respect,  amount  to  a  deceit 
practiced  upon  the  lessee."    Tayl.  Landl.  &  Ten.  §  382. 

The  principles  applicable  to  the  present  case  have  been  well  stated 
in  the  recent  case  of  Bowe  v.  Hunking,  135  Mass.  380,  46  Am.  Rep. 
471.    The  syllabus  states  the  case  and  decision  as  follows: 

"A  tenant  cannot  maintain  an  action  against  his  landlord  for  an 
injury  caused  by  falling  upon  a  stair  in  the  tenement,  the  tread  of 
which  has  been  sawed  out  and  left  unsupported  by  a  previous  tenant, 
there  having  been  full  opportunity  to  examine  the  stair  at  the  time 
of  hiring,  and  no  warranty  of  the  fitness  of  the  tenement  having  been 
given  by  the  landlord;  the  only  evidence  of  knowledge  on  the  part  of 
the  landlord  being  that  he  knew  the  stair  had  been  sawed  out,  that 
he  tried  it,  and  it  bore  his  weight,  and  he  thought  it  would  bear  any- 
body's weight." 

The  judge  directed  a  verdict  for  defendants,  and  the  supreme  court 
sustained  this  ruling.  Field,  J.,  giving  the  opinion  of  the  court,  said, 
(page  383 :) 


122  ESTATES    LESS    THAN    FREEHOLD 

"There  is  no  implied  warranty  in  the  letting  of  an  unfurnished  house 
or  tenement  that  it  is  reasonably  fit  for  use,  [citing  cases.]  The  tenant 
I  j  takes  an  estate  in  the  premises  hired,  and  persons  who  occupy  by  his 
'  permission,  or  as  members  of  his  family,  cannot  be  considered  as  oc- 
cupying by  the  invitation  of  the  landlord,  so  as  to  create  a  greater  lia- 
bility on  the  part  of  the  landlord  to  them  than  to  the  tenant.  The 
tenant  is  in  possession,  and  he  determines  who  shall  occupy  or  enter 
his  premises,  [citing  cases.] 

"In  the  case  at  bar  there  was  no  express  or  implied  warranty,  and 
no  actual  fraud  or  misrepresentation.  If  the  action  can  be  maintained 
it  must  be  on  the  ground  that  it  was  the  duty  of  the  defendants  to  in- 
form the  tenant  of  the  defect  in  the  staircase.  This  duty  if  it  exists, 
does  not  arise  from  the  contract  between  the  parties,  but  from  the 
relation  between  them,  and  is  imposed  by  law.  If  such  a  duty  is  im- 
posed by  law,  it  would  seem  that  there  is  no  distinction  as  a  ground 
of  liability  between  an  intentional  and  an  unintentional  neglect  to  per- 
form it;  but  in  such  a  case  as  this  is  there  can  be  no  such  duty  with- 
out knowledge  of  the  defect.  There  is  no  evidence  of  any  such  knowl- 
edge, except  on  the  part  of  C.  D.  Hunking,  and  the  other  defendants 
cannot  in  any  event  be  held  liable,  unless  his  knowledge  can  be  im- 
puted to  them,  as  the  knowledge  of  their  agent  in  letting  the  premises. 
The  evidence  is  insufficient  to  warrant  the  jury  in  finding  that  C.  D. 
Hunking  intentionally  concealed  the  defect  from  the  tenant;  and  the 
action,  if  it  can  be  maintained,  must  proceed  upon  the  ground  of  neg- 
lect to  perform  a  duty  which  the  law  imposed  upon  the  defendants. 

"A  tenant  is  a  purchaser  of  an  estate  in  the  land  or  building  hired ; 
and  Keates  v.  Earl  of  Cadogan,  10  C.  B.  591,  states  the  general  rule 
that  no  action  lies  by  a  tenant  against  a  landlord,  on  account  of  the 
condition  of  the  premises  hired,  in  the  absence  of  an  express  warranty 
or  of  active  deceit.  See,  also,  Robbins  v.  Jones,  15  C.  B.  (N.  S.)  240. 
This  is  a  general  rule  of  caveat  emptor.  In  the  absence  of  any  war- 
ranty, express  or  implied,  the  buyer  takes  the  risk  of  quality  upon  him- 
self. Hight  V.  Bacon,  126  Mass.  10,  30  Am.  Rep.  639 ;  Ward  v.  Hobbs, 
3  Q.  B.  Div.  150;  Howard  v.  Emerson,  110  Mass.  320,  14  Am.  Rep. 
608.    This  rule  does  not  apply  to  cases  of  fraud." 

This  rule  of  caveat  emptor  has  been  applied  also  in  many  other 
cases,  some  of  which  we  now  refer  to. 

Keates  v.  Earl  of  Cadogan,  above  cited,  was  an  action  on  the  case. 
The  declaration  stated  in  substance  that  the  defendant  knew  that  the 
house  was  in  such  a  ruinous  and  dangerous  state  as  to  be  dangerous 
to  enter,  occupy,  or  dwell  in,  and  was  likely  to  fall,  and  thereby  do 
damage  to  persons  and  property  therein ;  that  the  plaintiff  was  with- 
out any  knowledge,  notice,  or  information  whatever  that  the  said  house 
was  in  said  state  or  condition ;  that  the  defendant  let  the  house  to 
plaintiff  without  giving  plaintiff  any  notice  of  the  condition  of  the 
house ;  and  that  plaintiff  entered,  and  his  wife  and  goods  and  business 
were  injured.     Defendant  demurred  to  the  declaration,  and  the  court 


RIGHTS    AND   LIABILITIES    OF   LANDLORD    AND   TENANT  123 

unanimously  sustained  the  demurrer.  Jervis,  C.  J.,  giving  the  opinion, 
said,  (page  600:) 

"It  is  not  contended  that  there  was  any  warranty  that  the  house 
was  fit  for  immediate  occupation ;  but  it  is  said  that,  because  the  de- 
fendant knows  it  is  in  a  ruinous  state,  and  does  nothing  to  inform 
the  plaintiff  of  that  fact,  therefore  the  action  is  maintainable.  It  is 
consistent  with  the  state  of  things  disclosed  in  the  declaration  that, 
the  defendant  knowing  the  state  of  things,  the  plaintiff  may  have  come 
to  him  and  said,  'Will  you  lease  that  house  to  me?'  and  the  defendant 
may  have  answered,  'Yes,  I  will.'  It  is  not  contended  by  the  plaintiff 
that  any  misrepresentation  was  made,  nor  is  it  alleged  that  the  plaintiff 
was  acting  on  the  impression  produced  by  the  conduct  of  the  defendant 
as  to  the  state  of  the  house,  or  that  he  was  not  to  make  investigations 
before  he  began  to  reside  in  it.  I  think,  therefore,  that  the  defendant 
is  entitled  to  our  judgment,  there  being  no  obligation  on  the  defendant 
to  say  anything  about  the  state  of  the  house,  and  no  allegation  of  de- 
ceit.   It  is  an  ordinary  case  of  letting." 

The  rule  of  caveat  emptor  was  also  applied  in  the  recent  case  of 
Woods  V.  Cotton  Co.,  134  Mass.  357,  45  Am.  Rep.  344.  Defendant 
was  owner  of  a  tenement  house  fitted  for  four  families,  and  plaintiff 
was  tenant  at  will,  or  wife  of  tenant  at  will.  There  were  three  stone 
steps  leading  down  from  the  yard  to  the  street,  on  which  ice  and  snow 
had  accumulated,  and  on  which  plaintiff  slipped  and  received  the  injury 
complained  of.  There  was  evidence  tending  to  prove  that  at  the  time 
plaintiff  was  injured  she  was  in  the  exercise  of  due  care.  The  jury 
viewed  the  premises.  Plaintiff  contended  that  .the  steps  were  of  such 
material,  and  constructed  in  such  manner,  that  they  occasioned  the 
accumulation  of  snow  and  ice  thereon  improperly,  and  that  the  defend- 
ant's omission  to  place  a  rail  on  either  side,  or  to  take  other  reason- 
able measures  to  prevent  one  from  falling,  was  such  negligence  as 
would  render  the  defendant  liable;  but  the  trial  court  held  there  was 
no  evidence  to  go  to  the  jury,  and  directed  a  verdict  for  defendant,  and 
the  supreme  court  sustained  this  ruling.  Field,  J.,  giving  the  opinion, 
says,  (page  359 :) 

"There  may  be  cases  in  which  the  landlord  is  liable  to  the  tenant 
for  injuries  received  from  secret  defects  which  are  known  to  the  land- 
lord and  are  concealed  from  the  tenant,  but  this  case  discloses  no  such 
defects  in  the  steps.  *  *  *  [Page  361.]  The  ice  and  snow  were 
the  proximate  cause  of  the  injury. 

"The  exceptions  state  that  no  railing  had  ever  been  placed  on  either 
side  of  the  steps,  that  the  jury  viewed  the  premises,  and  that  it  was 
contended  'that  the  steps  were  of  such  material,  and  constructed  in 
such  manner,  that  they  occasioned  the  accumulation  of  ice  and  snow 
thereon  improperly.'  The  steps  were  of  rough-split,  unhewn  granite, 
and  the  'structure  of  the  steps  remained  unchanged  from  the  time  of 
the  plaintiff's  first  occupancy  of  the  tenement  to  the  time  she  received 


124  ESTATES    LESS    THAN    FREEHOLD 

her  injury.*     The  defendant  was  under  no  obligation  to  change  the 
original  construction  of  the  steps  for  the  benefit  of  the  tenant." 

Hazlett  V.  Powell,  30  Pa.  293,  was  an  action  of  replevin,  in  which 
an  apportionment  of  rent  was  claimed  by  the  tenant  of  an  hotel,  on 
the  ground  that  he  had  been  partially  evicted  by  the  act  of  an  adjoining 
owner  in  building  so  that  the  tenant's  light  and  air  from  one  side  of 
his  hotel  were  shut  off  or  obstructed,  and,  as  a  result,  that  the  hotel 
was  rendered  pro  tanto  unfit  for  the  purpose  for  which  it  was  intended 
to  be  used.  There  was  an  offer  to  prove  certain  facts,  (page  294,) 
which  the  court  states  as  follows,  (page  297 :) 

"But  the  rejected  proposition  also  contained  an  offer  to  prove  that 
the  lessor  knew  at  the  time  of  executing  the  lease  that  the  adjoining 
owner  intended  building  on  his  lot, — at  what  time  is  not  offered  to  be 
shown, — and  did  not  communicate  this  information  to  the  lessees. 
We  think  he  was  not  bound  to  do  so,  and  that,  if  the  evidence  had  been 
received,  it  would  have  furnished  no  evidence  of  fraud  on  the  part  of 
the  lessor,  or  become  the  foundation  in  equity  for  relief  of  the  lessees. 
The  substance  of  the  complaint  regarded  something  that  the  lessor  was 
no  more  presumed  to  know  than  the  lessees.  It  was  nothing  which 
concerned  the  title  of  the  lessor,  or  the  title  he  was  about  to  pass  to 
the  lessees.  It  was  a  collateral  fact, — something  only  within  the  knowl- 
edge and  determination  of  a  stranger  to  both  parties;  and,  if  ma- 
terial to  either,  I  can  see  no  obligation  resting  on  either  side  to  fur- 
nish to  the  other  the  information.  It  was  not  alleged  that  the  lessor 
made  any  representations  on  the  subject,  or  that  there  was  any  conceal- 
ment of  the  information ;  or  that  any  relation  of  trust  and  confidence 
existed  between  the  parties ;  or  that  the  lessees  were  misled  by  his 
silence,  and  entered  into  the  contract  under  the  belief  that  the  vacant 
lot  would  not  be  occupied ;  or  that  they  were  in  a  position  in  which 
they  could  not  by  diligence  have  ascertained  the  fact  for  themselves, 
and  that  they  were  not  legally  bound  to  take  notice  of  the  probability 
that  the  ground  would  be  occupied  by  buildings,  and  inquire  for  them- 
selves. These  were  elements  to  be  shown  to  constitute  fraud,  and  make 
the  testimony  available. 

"  'The  general  rule,  both  in  law  and  equity,'  says  Story  on  Contracts, 
(section  516,)  'in  respect  to  concealment,  is  that  mere  silence  in  regard 
to  a  material  fact  which  there  is  no  legal  obligation  to  disclose  will  not 
avoid  a  contract,  although  it  operates  as  an  injury  to  the  party  from 
whom  it  is  concealed.'  But  the  relation,  generally,  which  raises  the 
legal  obligation  to  disclose  facts  known  by  one  party  to  the  other,  is 
where  there  is  some  especial  trust  and  confidence  reposed,  such  as 
where  the  contracting  party  is  at  a  distance  from  the  object  of  nego- 
tiation, when  he  necessarily  relies  on  full  disclosure ;  or  where,  being 
present,  the  buyer  put  the  seller  on  good  faith  by  agreeing  to  deal  only 
on  his  representations.  In  all  these  and  kindred  cases  there  must  be  no 
false  representations  nor  purposed  concealments;  all  must  be  truly 
stated  and  fully  disclosed.     'The  vendor  and  vendee,'  says  Atkinson 


RIGHTS   AND  LIABILITIES   OF   LANDLORD    AND   TENANT  125 

on  Marketable  Titles,  134,  'in  the  absence  of  special  circumstances, 
are  to  be  considered  as  acting  at  arm's  length.  When  the  means  of  in- 
formation as  to  the  facts  and  circumstances  affecting  the  value  of  the 
'subject  of  sale  are  equally  accessible  to  both  parties,  and  neither  of 
them  does  anything  to  impose  on  the  other,  the  disclosure  of  any  su- 
perior knowledge  which  one  party  may  have  over  the  other  is  not  req- 
uisite to  the  validity  of  the  contract.'    Id. 

"Illustrative  of  this  is  the  celebrated  case  of  Laidlaw  v.  Organ,  2 
Wheat.  178,  4  L.  Ed.  214.  The  parties  had  been  negotiating  for  the 
purchase  of  a  quantity  of  tobacco.  The  buyer  got  private  information 
of  the  conclusion  of  peace  with  Great  Britain,  and  called  very  early 
in  the  morning  following  the  receipt  of  it  on  the  holders  of  the  tobacco, 
and,  ascertaining  that  they  had  received  no  intelligence  of  peace,  pur- 
chased it  at  a  great  profit.  The  contract  was  contested  for  fraud  and 
concealment.  Chief  Justice  Marshall  delivered  the  opinion  of  the 
court,  to  the  effect  that  the  buyer  was  not  bound  to  communicate  in- 
telligence of  extrinsic  circumstances  which  might  influence  the  price, 
though  it  were  exclusively  in  his  possession.  And  Chief  Justice  Gib- 
son, in  Kintzing  v.  McElrath,  5  Pa.  467,  in  commenting  on  this  de- 
cision, says :  'It  would  be  difficult  to  circumscribe  the  contrary  doc- 
trine within  proper  limits,  where  the  means  of  intelligence  are  equally 
accessible  to  both  parties.'  See  also,  Hershey  v.  Keembortz,  6  Pa.  129. 
When  the  information  is  derived  from  strangers  to  the  parties  ne- 
gotiating, and  not  affecting  the  quality  or  title  of  the  thing  negotiated 
for,  it  is  not  such  as  the  opposite  party  can  call  for.  We  see  no  error 
in  the  rejection  of  the  evidence  on  account  of  this  part  of  the  proposi- 
tion, as  there  was  no  moral  or  legal  obligation  for  the  lessor  to  disclose 
any  information  he  had  oh  the  subject  of  the  intended  improvement 
of  the  adjoining  lot.  It  was  not  in  the  line  of  his  title.  It  was  derived 
from  a  stranger ;  it  might  be  true  or  false ;  and  the  lessees  could  have 
got  it  by  inquiry,  as  well  as  the  lessor. 

"Jt^is  well  settled  that  there  is  no  implied  warranty  that  the  premises 
are  fit  for  the  purposes  for  which  they  are  rented,  [citing  authorities,] 
nor  that  they  shall  continue  so,  if  there  be  no  default  on  the  part  of  the 
landlord." 

In  the  recent  case  of  Viterbo  v.  Friedlander,  120  U.  S.  712,  7  Sup. 
Ct.  962,  30  L.  Ed.  776,  Mr.  Justice  Gray,  who  delivered  the  opinion 
of  the  court,  said,  in  contrasting  the  doctrines  of  the  common  and 
civil  law :  "By  that  law  (the  common  law,  unlike  the  civil  law)  the 
lessor  is  under  no  implied  covenant  to  repair,  or  even  that  the  premises 
shall  be  fit  for  the  purpose  for  which  they  are  leased." 

The  plaintiff's  evidence  failed  wholly  to  show  that  there  was  any 
special  and  secret  danger  from  snowslides  which  was  known  only  to 
the  railway  company,  and  which  could  not  have  been  ascertained  by 
the  plaintiff.  It  was,  indeed,  alleged  that  "the  section  house  was  in  a 
place  of  danger  from  snowslides ;"  but  this  was  plainly  the  danger 
that  impended  over  any  house  placed,  as  this  one  necessarily  was,  on 


126  ESTATES    LESS    THAN    FREEHOLD 

a  mountain  side  in  a  country  subject  to  heavy  falls  of  snow.  The  dan- 
ger referred  to  was  that  incident  to  the  region  and  the  climate,  and, 
in  the  eye  of  the  law,  as  well  known  to  the  plaintiff  as  to  the  defend- 
ant. 

On  a  careful  reading  of  the  plaintiff's  evidence  we  are  unable  to  see 
that  the  jury  could  have  been  permitted  to  find  any  positive  act  of  neg- 
ligence on  the  part  of  the  railroad  company,  or  any  omission  by  it  to 
disclose  to  the  plaintiff  any  fact  which  it  was  the  company's  duty  to 
disclose. 

If,  then,  the  plaintiff's  case,  as  it  appeared  in  her  evidence,  would 
not  have  justified  a  verdict  on  the  ground  of  negligence  or  a  fraudulent 
suppression  of  facts,  and  as  the  determination  of  the  nature  of  the 
relation  between  the  parties,  as  that  of  landlord  and  tenant,  was  clear- 
ly the  function  of  the  court,  there  would,  in  our  opinion,  have  been 
no  error  if  the  court  had  really  given  a  peremptory  instruction  to  the 
jury  to  find  for  the  defendant. 

However,  the  record  discloses  that  the  court  permitted  the  cases  to 
go  to  the  jury.  It  is  true  that  the  remarks  made  by  the  judge  must 
have  indicated  to  the  jury  that  his  own  view  was  against  the  plain- 
tift''s  right  to  recover;  but  it  has  often  been  held  by  this  court  that  it 
is  not  a  reversible  error  in  the  judge  to  express  his  own  opinion  of  the 
facts,  if  the  rules  of  law  are  correctly  laid  down,  and  if  the  jury  are 
given  to  understand  that  they  are  not  bound  by  such  opinion.  Balti- 
more &  P.  R.  Co.  V.  Baptist  Church,  137  U.  S.  568,  11  Sup.  Ct.  185. 
34  L.  Ed.  784;  Simmons  v.  U.  S.,  142  U.  S.  148,  12  Sup.  Ct.  171,  35 
L.  Ed.  968. 

It  is  not  necessary  for  us  to  review  in  detail  the  criticisms  made  in 
the  several  instructions,  for,  as  we  have  seen,  even  if  such  instructions 
had  amounted,  in  a  legal  effect,  to  a  direction  to  find  for  the  defendant, 
no  error  would  have  been  committed. 

It  is  obvious  that  these  views  of  the  case  of  Marcella  Doyle,  claiming 
for  her  personal  injuries,  are  equally  applicable  to  her  suit,  under  the 
statute,  for  the  loss  of  her  children.  The  latter  must  be  regarded  as 
having  entered  under  their  mother's  title,  and  not  by  reason  of  any  in- 
vitation, express  or  implied,  from  the  railway  company ;  and  hence 
they  assumed  a  like  risk,  and  are  entitled  to  no  other  legal  measure  of 
redress. 

"No  error  being  disclosed  by  these  records,  the  judgment  of  the  court 
below  is  in  each  case  affirmed. 


RIGHTS   AND   LIABILITIES    OF   LANDLOED   AND   TENANT  127 

,       DALY  V.  WISE. 

(Court  of  Appeals  of  New  York,  Second  Division,  1892.     132  N,  Y.  306,  30  N. 

E.  837,  16  L.  R.  A.  236.) 

Appeal  from  common  pleas  of  New  York  city  and  county,  general 
term. 

Action  by  Maria  L.  Daly  against  John  S.  Wise  to  recover  rent. 
Plaintiff  obtained  judgment,  which  was  affirmed  by  the  general  term. 
Defendant  appeals.    Affirmed. 

The  other  facts  fully  appear  in  the  following  statement  by  Foiy- 
LETT,  C.  J.: 

September  27,  1888,  the  litigants  entered  into  a  written  lease  by 
which  the  plaintiff  let  to  the  defendant  an  unfurnished  dwelHng,  known 
as  "334  West  Fifty-Eighth  Street,"  in  the  city  of  New  York,  for  one 
year  from  October  15,  1888,  for  $1,800,  payable  $150  October  15, 
1888,  and  a  like  sum  on  the  15th  day  of  each  succeeding  month.  The 
lease  contained  no  covenant  in  respect  to  the  then  condition  of  the 
house,  nor  that  the  lessor  should  put  or  keep  it  in  repair.  November 
15,  1888,  the  defendant  began  to  occupy  the  premises,  paid  the  rent 
for  four  months,  until  January  15,  1889,  and  continued  in  occupation 
until  February  2,  1889,  when  he  abandoned  them  because  of  their 
unsanitary  condition,  arising  from  defective  plumbing.  February  4, 
1890,  this  action  was  begun  to  recover  the  sums  due  by  the  terms  of 
the  lease  on  the  15th  day  of  February,  March,  April,  and  May,  1889, 
$600  in  all,  with  interest. 

The  defendant  answered  that  he  was  induced  to  enter  into  the 
lease  by  the  oral  representation  of  the  plaintiff's  agent  "that  the  build- 
ing on  said  premises  was  properly  constructed  and  in  thorough  repair, 
the  more  especially  in  the  matter  of  plumbing  and  sanitary  arrange- 
ments ;  and  that  this  defendant  signed  said  lease,  relying  upon  the 
faith  of  said  representations  so  made  as  aforesaid."  It  was  also  al- 
leged: "That,  when  defendant  entered  into  possession  of  said  prem-. 
ises,  it  was  discovered  that  said  representations  were  untrue,  and 
that  said  premises  were  unfit  for  the  purposes  of  a  residence,  in  that 
there  existed  hidden  defects  in  the  plumbing  and  construction  of  the 
sewer  and  other  pipes,  and  the  sanitarian  arrangements  in  the  build- 
ings thereon.  That  such  defects  were  concealed  from  view,  and  were 
not  discovered  until  the  effect  thereof  became  apparent  in  the  health 
of  the  defendant's  family.  That  by  reason  of  said  defects  the  said 
building  became  charged  with  sewer  gas  and  other  foul  and  poisonous 
odors,  thereby  causing  the  defendant,  his  wife,  children,  and  servants, 
to  become  sick,  and  in  great  danger  of  death ;  and  they  so  continued 
sick  and  in  danger  until  the  defendant  was  evicted  from  said  premises, 
as  hereinafter  set  out." 

At  the  close  of  the  evidence,  neither  party  asked  to  have  any  ques- 
tion of  fact  submitted  to  the  jury,  but  each  moved  that  a  verdict  be 
directed  in  his  or  her  favor.     The  defendant's  motion  was  refused. 


128  ESTATES    LESS    THAN    FREEHOLD 

and  he  excepted;  but  the  plaintiff's  motion  was  granted,  and  the  de- 
fendant again  excepted.  No  other  exceptions  are  contained  in  the 
record,  and  the  only  questions  reviewable  in  this  court  are  those 
presented  by  the  two  exceptions  mentioned.  A  judgment  was  entered 
on  the  verdict  for  the  plaintiff,  which  was  affirmed  at  general  term. 
No  opinion  was  written,  but  the  case  was  decided  upon  the  opinion  of 
the  same  court  in  another  action,  arising  over  the  same  lease.  7  N. 
Y.  Supp.  902. 

Folle;tt,  C.  J.,  (after  stating  the  facts.)  In  case  neither  party  re- 
quests to  have  any  question  of  fact  submitted  to  the  jury,  but  each 
asks  that  a  verdict  be  directed  in  his  favor,  the  court  is  authorized  to 
determine  the  fact  in  issue;  and  upon  appeal  the  disputed  facts  are 
'  deemed  to  have  been  determined  in  favor  of  the  party  for  whom  the 
verdict  is  directed.  Kirtz  v.  Peck,  113  N.  Y.  222,  21  N.  E.  130;  Dil- 
lon V.  Cockroft,  90  N.  Y.  649;  Provost  v.McEncroe,  102  N.  Y. 
650,  5  N.  E.  '795.  This  case  must  be  determined  upon  the  theory  that 
all  the  disputed  facts  have  been  found  in  favor  of  the  plaintiff*. 

In  case  the  whole  of  an  unfurnished  dwelling  is  leased  for  a  definite 
term,  under  a  single  contract,  which  contains  no  covenant  that  the 
premises  are  in  good  repair,  or  that  the  lessor  will  put  or  keep  them 
so,  the  law  does  not  imply  a  covenant  on  the  part  of  the  lessor  that 
the  dwelling  is  without  inherent  defects,  rendering  it  unfit  for  a 
residence.  Franklin  v.  Brown,  118  N.  Y.  110,  23  N.  E.  126,  6  L.  R. 
A.  770,  16  Am.  St.  Rep.  744.  In  Smith  v.  Marrable,  11  Mees.  & 
W.  5,  a  contrary  rule  was  laid  down  by  Baron  Parke.  That  case  arose 
out  of  a  contract  to  let  a  furnished  dwelling  for  six  weeks  at  eight 
guineas  per  week.  The  tenant  moved  in,  but  found  the  house  so 
infested  with  bugs  that  it  was  uninhabitable,  and  at  the  end  of  the 
first  week  left,  paying  the  rent  for  that  week.  In  an  action  brought, 
it  was  held,  in  the  opinion  delivered  by  Baron  Parke,  concurred  in 
by  Barons  Alderson  and  Gurney,  "that  if  the  demised  premises  are 
incumbered  with  a  nuisance  of  so  serious  a  nature  that  no  person  can 
reasonably  be  expected  to  live  in  them  the  tenant  is  at  liberty  to  throw 
them  up.  This  is  not  the  case  of  a  contract  on  the  part  of  the  land- 
lord that  the  premises  were  free  from  this  nuisance.  It  rather  rests  in 
an  implied  condition  of  law,  that  he  undertakes  to  let  them  in  a  habit- 
able state."  Chief  Baron  Abinger  concurred  upon  the  ground  that 
"a  man  who  lets  a  ready-furnished  house  surely  does  so  under  the  im- 
plied condition  or  obligation — call  it  which  you  will — that  the  house  is 
in  a  fit  state  to  be  inhabited." 

The  opinion  of  Baron  Parke  was  rested  on  the  authority  of  Ed- 
wards V.  Etherington,  Ryan  &  M.  268,  7  Dowl.  &  R.  117,  and  Col- 
lins V.  Barrow,  1  Moody  &  R.  112,  both  of  which  cases,  together  with 
Salisbury  v.  Marshal,  4  Car.  &  P.  65,  are  expressly  overruled  by  Hart 
V.  Windsor,  12  Mees.  &  W.  68,  in  which  Parke,  B.,  said:  "We  are 
under  no  necessity  of  deciding  in  the  present  case  whether  that  of 
Smith  V.  Marrable  be  law  or  not.     It  is  distinguishable  from  the  pres- 


EIGHTS    AND   LIABILITIES    OF   LANDLORD   AND   TENANT  129 

ent  case  on  the  ground  on  which  it  was  put  by  Lord  Abinger,  both 
on  the  argument  of  the  case  itself,  but  more  fully  in  that  of  Sutton 
V.  Temple,  12  Mees.  &  W.  52,  for  it  was  the  case  of  a  demise  of  a 
ready-furnished  house  for  a  temporary  residence  at  a  watering  place. 
It  was  not  a  lease  of  real  estate,  merely.  But  that  case  certainly  can- 
not be  supported  on  the  ground  on  which  I  rested  my  judgment." 
Smith  V.  Marrable  was  decided  at  Hilary  term,  1843,  and  Hart  v. 
Windsor  and  Sutton  v.  Temple  at  Michaelmas  term  of  the  same  year. 
The  rule  laid  down  in  Smith  v.  Marrable  by  Abinger,  C.  B.,  as  ap- 
plicable to  furnished  houses,  has  been  followed  in  Campbell  v.  Lord 
Wenlock,  4  Fost.  &  F.  716,  and  Wilson  v.  Hatton,  2  Exch.  Div.  336; 
but  the  rule  as  stated  by  Parke,  B.,  has  not  been  followed  in  Eng- 
land or  in  this  state.  Franklin  v.  Brown,  118  N.  Y.  110,  23  N.  E. 
126,  6  L.  R.  A.  770,  16  Am.  St.  Rep.  744.  The  defendant  cannot 
escape  liability  for  rent  on  the  ground  that  the  law  implied  a  cove- 
nant that  the  dwelling  was  fit  for  habitation. 

Is  the  evidence  contained  in  the  record  sufficient  to  have  required 
the  trial  court  to  have  held,  as  a  matter  of  law,  that  the  plaintiff  fraud- 
ulently represented  that  the  dwelling  and  its  fixtures  were  in  goo-d 
condition,  or  that  she  fraudulently  concealed  from  the  plaintiff  the 
fact  that  it  was  in  an  unsanitary  condition?  In  case  the  owner  of 
a  dwelling  knows  that  it  has  secret  defects  and  conditions  rendering  it 
unfit  for  a  residence,  and  fraudulently  represents  to  one  who  be- 
comes a  tenant  that  the  defects  and  conditions  do  not  exist,  or  if  he 
fraudulently  conceals  their  existence  from  him,  the  lessee,  if  he  aban- 
dons the  house  for  such  cause,  will  not  be  liable  for  subsequently 
accruing  rent.  Wallace  v.  Lent,  1  Daly,  481 ;  Jackson  v.  Odell,  12 
Daly,  345 ;  Rhinelander  v.  Seaman,  13  Abb.  N.  C.  455 ;  Cesar  v. 
Karutz,  60  N.  Y.  229,  19  Am.  Rep.  164. 

In  the  case  at  bar  the  defendant  testified,  and  in  this  he  was  not 
contradicted,  that,  when  he  first  went  to  the  house  with  the  plaintiff's 
agent,  he  said:  "I  complained  to  him  [the  agent]  at  the  time  that  I 
thought  some  of  the  plumbing  looked  old.  He  said  that  Mrs.  Daly 
was  very  stiff, — determined  not  to  put  in  any  new;  that  it  was  all 
in  good  condition;  that  they  had  fixed  it  as  they  thought  it  ought 
to  be."  This  is  the  only  representation  which  was  made  by  the  plain- 
tiff or  her  agent  in  respect  to  the  sanitary  condition  of  the  dwelling. 
It  was  not  shown  that  the  plaintiff  or  the  agent  knew  that  the  repre- 
sentations were  false,  or  that  the  plumbing  was  out  of  order,  and 
fraudulently  concealed  the  fact.  This  takes  the  case  out  of  the  rule 
above  referred  to,  in  respect  to  the  owner's  liability  in  case  he  fraudu- 
lently misrepresents  the  condition  of  the  dwelling,  or,  knowing  that 
it  is  in  bad  condition,  fraudulently  conceals  the  fact  from  the  person 
who  becomes  the  lessee. 

Is  the  plaintiff  liable  for  having  stated  that  a  material   fact  ex- 
isted which  did  not  exist,  i.  e.,  that  the  plumbing  was  in  good  order, 
Bukd.Cas.Real  Prop. — 9 


130  ESTATES    LESS    THAN    FREEHOLD 

upon  the  theory  that  she  was  bound  to  know  whether  or  not  the  state- 
ment was  true?  In  case  a  party,  for  the  purpose  of  inducing  another 
to  contract  with  him,  states,  on  his  personal  knowledge,  that  a  material 
fact  does  or  does  not  exist,  without  having  knowledge  whether  the 
statement  is  true  or  false,  and  without  having  reasonable  grounds  to 
believe  it  to  be  true,  he  is  liable  in  fraud,  if  the  statement  is  relied 
on,  and  is  subsequently  found  to  be  false,  although  he  had  no  actual 
knowledge  of  the  untruth  of  the  statement.  Bennett  v.  Judson,  21 
N.  Y.  238 ;  Marsh  v.  Falker,  40  N.  Y.  562 ;  Oberlander  v.  Speiss,  45 
N.  Y.  175;  Wakeman  v.  Dalley,  51  N.  Y.  27,  10  Am.  Rep.  551;  2 
Pom.  Eq.  Jur.  §§  887,  888;  Story,  Eq.  Jur.  §  193.  It  does  not  appear 
that  the  plumbing  had  not  been  fixed  as  stated,  nor  that  the  statement 
that  "it  was  all  in  good  condition"  was  made  without  actual  or  sup- 
posed knowledge  of  its  condition,  nor  that  it  was  made  in  bad  faith ; 
and  we  think  the  case  does  not  fall  within  the  principle  of  the  au- 
thorities last  cited. 

The  defendant  cannot  escape  liability  on  the  ground  that  the  state- 
ment of  the  agent  amounted  to  a  warranty,  because  it  is  not  so  plead- 
ed in  the  answer.  The  judgment  should  be  affirmed,  with  costs.  All 
concur.* 


INGALLS  V.  HOBBS. 

(Supreme  Judicial  Court  of  Massachusetts,  1892.    156  Mass.  348,  31  N.  E.  286, 

16  L.  K.  A.  51,  32  Am.  St.  Rep.  460.) 

Appeal  from  superior  court,  Suffolk  county. 

Action  by  Sarah  P.  Ingalls  and  others  against  Warren  D.  Plobbs 
"to  recover  rent  for  a  dwelling  house.  Defendant  had  judgment  on  an 
agreed  statement  of  facts,  and  plaintiffs  appeal.     Affirmed. 

KxowlTon,  J.  This  is  an  action  to  recover  $500  for  the  use  and  oc- 
cupation of  a  furnished  dwelling  house  at  Swampscott  during  the 
summer  of  1890.  It  was  submitted  to  the  superior  court  on  what 
is  entitled  an  "agreed  statement  of  evidence,"  by  which   it  appears 

4  Where  there  is  no  fraud  or  concealment  on  the  part  of  the  lessor,  the  rule 
of  caveat  euii)tor  applies  as  to  the  condition  of  the  property  at  the  time  of  the 
lease,  in  absence  of  any  agreement  by  the  lessor  that  the  premises  are  suit- 
able for  occupation  or  for  any  other  intended  purpose.  Transfer  Co.  v.  Ma- 
loue,  150  Ala.  325,  48  South.  705  (1909);  Deupett  v.  Sullivan,  100  Me.  118,  00 
Atl.  886  (1905);  liand  v.  Adams,  185  Mass.  341,  70  N.  E.  445  (1904).  Cf.  Hard- 
man  Estate  V.  McXair,  61  Wash.  74,  111  Pac.  1059  (1910).  In  the  case  of  Hart 
V.  Windsor,  12  Mees.  &  W.  68,  cited  in  the  foregoing  case,  the  house,  accord- 
ing to  the  plea  of  the  defendant,  who  had  quitted  the  premises  and  refused 
to  pay  rent,  was  ''overrun  with  noxious,  stiuliing,  and  nasty  insects,  called 
bugs."  Ills  plea  was  held  no  defense,  however.  Likewise  in  the  case  of  Fos- 
ter v.  Peyser,  9  Cush.  (Mass.)  242,  57  Am.  Dec.  43  (1852),  the  tenant  was  held 
liable  for  rent  although  the  conditions  of  the  drains  made  the  house  unfit  for 
habitation. 

In  Georgia,  however,  it  is  held  to  be  the  duty  of  a  landlord  to  have  a  ten- 
ement on  the  day  when  the  term  begins  in  a  condition  reasonably  suited  for 
the  purposes  for  which  it  is  rented.  White  v.  Montgomery,  58  Ga.  204  (1877) ; 
Thompson  v.  Walker,  6  Ga.  App.  80,  64  S.  E.  336  (1909). 


RIGHTS    AND   LIABILITIES    OF   LANDLORD    AND   TENANT  131 

that  the  defendant  hired  the  premises  of  the  plaintiffs  for  the  season, 
as  a  furnished  house,  provided  with  beds,  mattresses,  matting,  curtains, 
chairs,  tables,  kitchen  utensils,  and  other  articles  which  were  appar- 
ently in  good  condition,  and  that  when  the  defendant  took  possession 
it  was  found  to  be  more  or  less  infested  with  bugs,  so  that  the  de- 
fendant contended  that  it  was  unfit  for  habitation,  and  for  that  reason 
gave  it  up,  and  declined  to  occupy  it.  The  agreed  statement  concludes 
as  follows :  "If,  under  the  above  circumstances,  said  house  was  not 
fit  for  occupation  as  a  furnished  house,  and,  being  let  as  such,  there 
was  an  implied  agreement  or  warranty  that  the  said  house  and  furni- 
ture therein  should  be  fit  for  use  and  occupation,  judgment  is  to  be 
for  the  defendant,  with  costs.  If,  however,  under  said  circumstances, 
said  house  was  fit  for  occupation  as  a  furnished  house,  or  there  was 
no  such  implied  agreement  or  warranty,  judgment  is  to  be  for  the 
plaintiffs  in  the  sum  of  $500,  with  interest  from  the  date  of  the  writ, 
and  costs."  Judgment  was  ordered  for  the  defendant,  and  the  plain- 
tiffs appealed  to  this  court. 

The  agreement  of  record  shows  that  the  facts  were  to  be  treated 
by  the  superior  court  as  evidence  from  which  inferences  of  fact  might 
be  drawn.  The  only  "matter  of  law  apparent  on  the  record"  which 
can  be  considered  as  an  appeal  in  a  case  of  this  kind  is  the  question 
whether  the  judgment  is  warranted  by  the  evidence.  Pub.  St.  c.  152, 
§  10;  Rand  v.  Hanson,  154  Mass.  87,  28  N.  E.  6,  12  L.  R.  A.  574. 
26  Am.  St.  Rep.  210;  Mayhew  v.  Durfee,  138  Mass.  584;  Railroad 
Co.  V.  Wilder,  137  Mass.  536;  Hecht  v.  Batcheller,  147  Mass.  335, 
17  N.  E.  651,  9  Am.  St.  Rep.  708;  Fitzsimmons  v.  Carroll,  128  Mass. 
401 ;  Charlton  v.  Donnell,  100  Mass.  229.  The  facts  agreed  warrant 
a  finding  that  the  house  was  unfit  for  habitation  when  it  was  hired, 
and  we  are  therefore  brought  directly  to  the  question  whether  there 
was  an  implied  agreement  on  the  part  of  the  plaintiff'  that  it  was  in 
a  proper  condition  for  immediate  use  as  a  dwelling  house.  It  is  well 
settled,  both  in  this  commonwealth  and  in  England,  that  one  who  lets 
an  unfurnished  building  to  be  occupied  as  a  dwelling  house  does  not 
impliedly  agree  that  it  is  fit  for  habitation.  Button  v.  Gerrish,  9 
Cush.  89,  55  Am.  Dec.  45;  Foster  v.  Peyser,  9  Cush.  242,  57  Am. 
Dec.  43;  Stevens  v.  Pierce,  151  Mass.  207,  23  N.  E.  1006;  Sutton 
V.  Temple,  12  Mees.  &  W.  52 ;    Hart  v.  Windsor,  Id.  68. 

In  the  absence  of  fraud  or  a  covenant,  the  purchaser  of  real  es- 
tate, or  the  hirer  of  it  for  a  term,  however  short,  takes  it  as  it  is,  and 
determines  for  himself  whether  it  will  serve  the  purpose  for  which  he 
wants  it.  He  may,  and  often  does,  contemplate  making  extensive 
repairs  upon  it  to  adapt  it  to  his  wants.  But  there  are  good  reasons 
why  a  diff'erent  rule  should  apply  to  one  who  hires  a  furnished  room, 
or  a  furnished  house,  for  a  few  days,  or  a  few  weeks  or  months.  Its 
fitness  for  immediate  use  of  a  particular  kind,  as  indicated  by  its 
appointments,  is  a  far  more  important  element  entering  into  the  con- 


132  ESTATES    LESS>rHAN    FREEHOLD 

tract  than  when  there  is  a  mere  lease  of  real  estate.  One  who  lets 
for  a  short  term  a  house  provided  with  all  furnishings  and  appoint- 
ments for  immediate  residence  may  be  supposed  to  contract  in  ref- 
erence to  a  well-understood  purpose  of  the  hirer  to  use  it  as  a  habita- 
tion. An  important  part  of  what  the  hirer  pays  for  is  the  oppor- 
tunity to  enjoy  it  without  delay,  and  without  the  expense  of  preparing 
it  for  use.  It  is  very  difficult,  and  often  impossible,  for  one  to  deter- 
mine on  inspection  whether  the  house  and  its  appointments  are  fit  for 
the  use  for  which  they  are  immediately  wanted,  and  the  doctrine 
caveat  emptor,  which  is  ordinarily  applicable  to  a  lessee  of  real  es- 
tate, would  often  work  injustice  if  applied  to  cases  of  this  kind.  It 
would  be  unreasonable  to  hold,  under  such  circumstances,  that  the 
landlord  does  not  impliedly  agree  that  what  he  is  letting  is  a  house 
suitable  for  occupation  in  its  condition  at  the  time. 

This  distinction  between  furnished  and  unfurnished  houses  in  ref- 
erence to  the  construction  of  contracts  for  letting  them,  when  there 
are  no  express  agreements  about  their  condition,  has  long  been  rec- 
ognized in  England,  where  it  is  held  that  there  is  an  implied  contract 
that  a  furnished  house  let  for  a  short  time  is  in  proper  condition  for 
immediate  occupation  as  a  dwelling.  Smith  v.  Marrable,  11  Mees. 
&  W.  5;  Wilson  v.  Hatton,  2  Exch.  Div.  336;  Warehouse  Co.  v. 
Carr,  5  C.  P.  Div.  507;  Sutton  v.  Temple,  ubi  supra;  Hart  v.  Wind- 
sor, ubi  supra;  Bird  v.  Lord  Greville,  1  Cababe  &  E.  317;  Charsley 
V.  Jones,  53  J.  P.  Q.  B.  280.  In  Button  v.  Gerrish,  9  Cush.  89,  55 
Am.  Dec.  45,  Chief  Justice  Shaw  recognizes  the  doctrine  as  applica- 
ble to  furnished  houses;  and  in  Edwards  v.  McLean,  122  N.  Y.  302, 
25  N.  E.  483,  Smith  v.  Marrable,  and  Wilson  v.  Hatton,  cited  above, 
are  referred  to  with  approval,  although  held  inapplicable  to  the  ques- 
tion then  before  the  court.  See  Clevlfe  v.  Willoughby,  7  Hill  (N.  Y.) 
83;  Franklin  v.  Brown,  118  N.  Y.  110,  23  N.  E.  126,  6  L.  R.  A.  770, 
16  Am.  St.  Rep.  744. 

We  are  of  opinion  that  in  a  lease  of  a  completely  furnished  dwell- 
ing house  for  a  single  season  at  a  summer  watering  place  there  is 
an  implied  agreement  that  the  house  is  fit  for  habitation,  without 
greater  preparation  than  one  hiring  it  for  a  short  time  might  reason- 
ably be  expected  to  make  in  appropriating  it  to  the  use  for  which  it 
was  designed.    Judgment  affirmed.^ 

6  As  stated  in  the  text,  it  is  the  English  rule  that  in  the  letting  of  a  fur- 
nished house,  particularly  for  a  brief  period,  there  is  an  implied  covenant  that, 
at  tlie  time  of  the  commencement  of  the  term,  it  is  in  a  state  of  fitness  tor 
habitation,  and  if  it  is  not  so,  the  tenant  may  rescind  the  contract  at  once. 
Smith  V.  Marral)le.  11  Mees.  &  W.  5  (1843)  ;  Wilson  v.  Finch  Hatton,  2  Ex.  D. 
3:J6  (1877)  ;  Harrison  v.  Malet,  3  T.  L.  R.  58  (1886),  where  there  were  defects 
in  drainage;  Bird  v.  Greville,  Cab.  &  El.  317  (1884),  house  not  properly  disin- 
fected after  recent  infectious  sicliness ;  Charsley  v.  Jones,  53  J.  P.  280  (1889). 
The  rule  is  ba.sed  upon  the  doctrine  of  the  intention  of  the  parties.  Although 
the  Massachusetts  case  of  Ingalls  v.  Hobbs,  supra,  adopts  the  English  rule, 
yet  the  weight  of  authority  in  this  country  would  seem  to  be  to  the  contrary. 
In  Murray  v.  Albertson,  50  N.  J.  Law,  167,  13  Atl.  394,  7  Am,  St.  Kep.  787 


EIGHTS   AND   LIABILITIES    OF   LANDLORD    AND   TENANT  lu3 


2   Indeipkndent  of  Covenants 


HAYNES  V.  ALDRICH. 

(Court  of  Appeals  of  New  York,  1892.     133  N.  Y.  287,  31  N.  E.  94,  28  Am. 

St.  Kep.   636.) 

Appeal  from  superior  court,  New  York  city,  general  term. 

Action  by  Elizabeth  J.  Haynes  against  Elizabeth  W.  Aldrich.  From 
a  judgment  of  the  general  term,  affirming  a  judgment  for  plaintiff, 
entered  on  a  verdict  directed  by  the  trial  judge,  defendant  appeals. 
Affirmed. 

Finch,  J.  Judgment  was  ordered  against  the  defendant  upon  the 
trial  of  this  action  for  rent  accrued  after  the  expiration  of  her  orig- 
inal lease,  upon  the  ground  that  by  holding  over  after  such  expira- 
tion she  "became  a  tenant  for  another  year  upon  the  terms  of  the  prior 
written  lease.  The  facts  disclosed  were  that  such  lease  ended  by  its 
terms  on  May  1,  1889;  that  it  contained  a  provision  that  the  prem- 
ises should  be  occupied  as  a  private  dwelling,  and  a  covenant  not  to 
sublet  without  the  written  consent  of  the  lessor.  Both  stipulations 
were  violated.  The  tenant,  without  permission,  rented  the  premises 
to  Mrs.  Coventry,  who  occupied  them  as  a  boarding  house,  and  re- 
ceived as  one  of  her  boarders  a  lady,  who  was  a  chronic  invalid,  and 
continuously  ill.  On  the  4th  of  February,  1889,  the  lessor  inquired 
of  the  lessee  whether  she  desired  to  renew  her  lease  for  another  year, 
and  was  informed  that  she  did  not.  The  1st  day  of  May  was  a  holi- 
day, and  doubtless  the  tenant  had  until  noon  of  the  next  day  for  a 
surrender  of  possession.  But  the  possession  was  retained  by  the  ten- 
ant until  the  afternoon  of  May  4th,  when  the  keys  were  tendered,  but 
refused.  The  excuse  given  is  that  on  the  2d  day  of  May  there  was 
difficulty  in  engaging  trucks,  that  the  removal  began  on  the  3d,  but 
the  sick  boarder  could  not  then  be  moved  with  safety,  and  was  not 
moved  until  the  4th.  This  court  held  in  Commissioners  v.  Clark, 
33  N.  Y.  251,  that  the  rule  is  too  well  settled  to  be  disputed  that, 
where  a  tenant  holds  over  after  the  expiration  of  his  term,  the  law 
will  imply  an  agreement  to  hold  for  a  year  upon  the  terms  of  the  prior 
lease;  that  the  option  to  so  regard  it  is  with  the  landlord,  and  not 
with  the  tenant ;  and  that  the  latter  holds  over  his  term  at  his  peril. 
In  Conway  v.  Starkweather,   1   Denio,   114,  the  tenant  had  notified 

(1887),  the  court  reviews  the  English  cases,  and  refuses  to  follow  them.  Fish- 
er V.  Lighthall,  4  Mackey  (15  D.  C.)  82,  54  Am.  Rep.  258  (1885),  likewise  holds 
that  there  is  no  implied  covenant  that  on  the  leasing  of  a  furnished  house 
that  the  premises  are  habitable.  Compare,  also.  Green  v.  Redding,  92  Cal.  548, 
28  Pac.  599  (1891);  Franklin  v.  Brown,  118  N.  Y.  110,  23  N.  E.  126,  6  L.  R.  A. 
770,  16  Am.  St  Rep.  744  (1889)  ;  Edwards  v.  McLean,  122  N.  Y.  302,  25  N.  E. 
483  (1890). 


134  ESTATES    LESS    THAN    FREEHOLD 

the  landlord  of  his  intention  not  to  remain  for  another  year,  as  was 
the  fact  in  the  present  case,  but  nevertheless  did  hold  over  for  a  fort- 
night, and  the  fact  of  the  notice  was  held  to  be  immaterial,  the  court 
saying:  "The  act  of  the  plaintiff  in  holding  over  has  given  the  de- 
fendants a  legal  right  to  treat  him  as  tenant,  and  it  is  not  in  his 
power  to  throw  oft'  that  character,  however  onerous  it  may  be." 

The  appellant  does  not  deny  the  rule,  but  seeks  to  qualify  it  so  as 
to  mean  that  it  is  only  where  the  tenant  holds  over  voluntarily,  and 
for  his  own  convenience,  that  the  landlord's  right  arises,  and  that  it 
does  not  so  arise  when  the  tenant  holds  over  involuntarily,  not  for  his 
own  convenience,  but  because  he  cannot  help  it.  I  am  averse  to  any 
such  qualification.  It  would  introduce  an  uncertainty  into  a  rule 
whose  chief  value  lies  in  its  certainty.  The  consequent  confusion 
would  be  very  great.  Excuses  would  always  be  forthcoming,  and 
their  sufficiency  be  subject  to  the  doubtful  conclusions  of  a  jury;  and 
no  lessor  would  ever  know  when  he  could  safely  promise  possession 
to  a  new  tenant.  The  cases  cited  by  the  appellant  do  not  bear  out 
his  contention.  In  Smith  v.  Allt,  7  Daly,  492,  the  holding  over  was 
in  part  the  act  and  assent  of  the  landlord,  and  occasioned  by  pending 
negotiations,  and  could  not  have  been  said  to  be  the  sole  act  of  the 
tenant.  In  Shanahan  v.  Shanahan,  55  N.  Y.  Super.  Ct.  344,  it  ap- 
peared that  the  1st  of  May  was  Sunday;  that  the  tenant  began  to 
move  on  the  afternoon  of  the  2d ;  that  the  removal  continued  during 
the  3d ;  and  for  that  reason  the  tenant  was  held  liable.  The  court 
did  interject  the  remark  that  there  was  no  unavoidable  delay  in  mov- 
ing, but  without  seeking  to  change  or  modify  the  rule.  In  McCabe 
v.  Evers,  9  N.  Y.  Supp.  541,  decided  in  1890,  in  the  New  York  city 
court,  it  appeared  that  the  tenant  moved  out  on  the  1st  of  May,  but 
left  behind  him  an  old  stove  and  some  rubbish,  and  tendered  the  key 
on  the  2d  of  May.  The  court  held  that  the  evidence  of  a  holding 
over  was  inconclusive  and  ambiguous,  and  the  question  should  have 
been  submitted  to  the  jury.  In  Manly  v.  Clemmens,  14  N,  Y.  Supp. 
366,  decided  by  the  same  court,  the  term  expired  on  February  2d 
at  noon  ;  the  tenant  began  his  removal  in  the  morning,  and  worked 
till  midnight.  There  was  a  verdict  against  the  landlord,  which  the 
court  refused  to  set  aside.  These  cases,  even  if  regarded  in  all  re- 
spects as  correctly  decided,  fall  very  far  short  of  establishing  the 
appellant's  doctrine,  or  justifying  a  reversal  in  the  present  case. 

There  is  no  question  here  about  the  fact  of  a  holding  over,  and  no 
question,  therefore,  in  that  regard,  for  the  solution  of  a  jury.  The 
tenant  remained  in  possession  voluntarily,  for  her  own  convenience 
and  that  of  her  sick  boarder.  If  it  was  unsafe  to  remove  the  latter, 
the  situation  was  wholly  the  fault  of  the  tenant,  who  sets  up  as  an 
excuse  for  one  violation  of  the  lessor's  rights  the  consequences  of 
her  own  earlier  violation  of  the  terms  t)f  the  lease.  No  impossibility 
of  removal  was  shown;    merely  difficulty  and  mconvenience,  which 


RIGHTS   AND   LIABILITIES   OF   LANDLORD   AND   TENANT  135 

should  have  been  and  might  have  been  foreseen  and  provided  against. 
If  the  rule  in  this  case  seems  to  involve  a  hardship,  that  is  sometimes 
true  of  every  general  rule,  however  just  and  wise,  but  does  not  justify 
its  abrogation.  To  sustain  this  defense  would  open  the  door  to  a 
destruction  of  the  settled  doctrine,  and  tend  to  involve  the  rights  of 
both  lessor  and  lessee  in  uncertainty  and  confusion.  I  do  not  mean 
to  say  that  whether  there  has  been  a  holding  over  at  all  may  not 
sometimes  be  so  doubtful  upon  the  facts  as  to  require  a  submission 
to  the  jury.  I  mean  to  say  that  there  is  no  such  doubt  in  the  present 
case.  I  reserve  the  question,  also,  whether  there  might  not  be  an 
unavoidable  delay  in  no  manner  the  fault  of  the  tenant,  directly  or 
indirectly,  which  would  serve  as  a  valid  excuse.  It  is  enough  that 
here  was  a  holding  over  not  unavoidable,  which  might  have  been  pro- 
vided against,  and  where  the  chief  difficulty  grew  directly  out  of  the 
tenant's  own  wrongful  act. 

It  is  claimed,  how^ever,  that  the  further  question  whether  the  lessor 
exercised  the  permitted  option  or  took  possession  in  her  own  right 
should  have  been  submitted  to  the  jury.  I  think  the  facts  admit  of 
but  one  inference.  The  Jessor  did  exercise  her  option,  and  that 
promptly  and  clearly.  When  the  keys  were  tendered  to  her  mother 
they  were  refused.  In  the  afternoon  of  May  4th  the  lessor  went 
to  the  house,  to  see  what  was  occurring.  She  found  it  deserted,  and 
the  windows  open.  Her  property  needed  protection.  Under  the  lease 
she  had  a  right  to  enter  and  relet  it  as  the  agent  of  the  tenant.  A 
policeman  entered  through  the  open  window.  Some  keys  were  fo.und 
on  the  mantel,  and  thereafter  used,  but  evidently  not  all,  for  others 
were  restored  much  later.  The  premises  were  somewhat  damaged, 
and  the  lessor  had  a  little  painting  and  some  plumbing  done,  amount- 
ing only  to  ordinary  and  needed  repairs.  She  tried  to  rent  the  house, 
but  failed,  and  went  to  Europe  during  the  summer,  and  occupied 
the  house  in  the  fall,  under  a  stipulation  which  expressly  reserved 
her  existing  rights.  Upon  these  facts  no  inference  was  justified  ex- 
cept that  drawn  by  the  court.  There  was  a  clear  refusal  to  accept 
the  surrender  offered,  and  the  repairs  were  consistent  with  that  posi- 
tion, and  with  the  right  reserved  in  the  lease.  We  think  the  judg- 
ment was  correct,  and  should  be  affirmed,  with  costs.     All  concur. 


•DAVIS  V.  WILLIAMS. 

(Supreme  Court  of  Alabama.  1901.     130  Ala.  530,  30  South.  4S8,  54  L.  E.  A. 

749,  S9  Am.  St.  Rep.  55.) 

Appeal  from  chancery  court,  Macon  county;  W.  L.  Parks,  Chan- 
cellor. 

The  bill  was  filed  to  compel  the  specific  performance  of  a  contract 
which  was  made  by  R.  T.  Davis  and  Mary  C.  Davis  with  the  Georgia 
&  Alabama  Construction  Company,  by  which  contract  R.  T.  Davis 


136  ESTATES    LESS    THAN    FREEHOLD 

and  Mary  C.  Davis,  his  wife,  agreed,  upon  certain  conditions,  to 
convey  to  the  Georgia  &  Alabama  Construction  Company  one-half 
interest  in  40  acres  of  land  in  Macon  county.  The  conditions  of 
this  contract,  as  stated  in  the  opinion,  were  fulfilled,  and  the  contract 
was  assigned  by  the  Georgia  &  Alabama  Construction  Company  to 
the  complainants.  After  the  execution  of  the  contract  R.  T.  Davis 
died,  and  the  title  to  the  lands  vested  in  his  wife,  Mary  C.  Davis, 
and  Hubert  T.  Davis  and  Fort  Davis,  his  children,  who  survived  him. 
Alary  C.  Davis  purchased  the  interest  of  Fort  Davis,  and  at  the  time 
of  the  filing  of  the  present  bill  she  and  Hubert  T.  Davis  owned  the 
lands  as  tenants  in  common.  The  other  facts  of  the  case  necessary 
to  an  understanding  of  the  decision  on  the  present  appeal  are  suffi- 
ciently stated  in  the  opinion.  On  the  submission  of  the  cause  on  the 
pleadings  and  proof  the  chancellor  rendered  a  decree  granting  the 
relief  prayed  for,  and  directed  the  defendants  to  execute  and  deliver 
to  the  complainants  a  deed  to  a  one-half  interest  in  the  lands  in 
dispute. 

Tyson,  J.  The  bill  in  this  case  was  filed  by  complainants,  as  owners 
of  a  certain  contract  by  assignment,  against  the  respondents,  as  suc- 
cessors in  interest  and  title  to  the  lands  agreed  to  be  conveyed,  and 
seeks  a  specific  performance  of  that  contract.  The  contract  was  exe- 
cuted by  R.  T.  Davis  and  Mary  C.  Davis,  his  wife,  in  which  they 
agreed  to  convey  by  warranty  deed  a  half  interest  in  40  acres  of  land, 
to  be  selected  by  the  complainants'  assignors,  in  a  certain  section 
owned  by  R.  T.  Davis.  The  consideration  of  this  contract  was  that 
the  complainants'  assignors  were  to  build  the  Savannah,  Americus  & 
Montgomery  Railroad  within  one-half  mile  of  the  residence  of  the 
Davises,  and  to  erect  a  depot  within  the  same  distance  from  their 
residence,  at  any  point  along  the  line  of  the  road  most  suitable  to 
themselves.  The  deed  was  to  be  executed  as  soon  as  the  road  was 
built,  the  depot  established,  and  a  train  made  a  trip  to  Montgomery. 
The  land  agreed  to  be  conveyed  upon  compliance  with  the  conditions 
of  the  contract,  and  selected,  was  a  part  of  a  tract  of  land  owned  by 
him,  comprising  about  800  acres.  R.  T.  Davis  died  shortly  after  en- 
tering into  the  contract,  and  after  the  selection  of  the  land  was 
made  by  complainants'  assignors  under  it.  He  left  surviving  him  his 
wife  and  two  sons.  His  wife,  who  is  one  of  the  respondents,  was 
at  the  date  of  the  filing  of  the  bill  the  owner  of  a  two-thirds  undi- 
vided interest  in  the  entire  tract;  and  Hubert  T.  Davis,  a  son,  the 
other  respondent,  was  the  owner  of  the  remainder.  The  evidence 
shows  without  dispute  that  the  road  was  built,  the  depot  established, 
a  train  ran  through  to  Montgomery,  and  the  land  selected  during  the 
year  1891.  In  other  words,  complainants'  assignors  had  performed 
their  obligation  under  the  contract,  and  were  entitled  to  a  deed  from 
the  respondents  during  the  year  1891.     On  April  20,  1896,  the  com- 


EIGHTS   AND    LIABILITIES    OF   LANDLORD   AND   TENANT  137 

plainants  by  purchase  became  the  owners  of  this  contract,  and  by  vir- 
tue of  that  ownership  were  entitled  to  a  deed  from  the  respondents. 

One  of  the  defenses  invoked  by  the  answer  of  the  respondents 
is  that  complainant  Williams  for  a  period  of  about  two  years  before 
the  filing  of  this  bill,  at  the  date  of  its  filing,  and  for  one  year  sub- 
sequent thereto,  tenanted  and  dwelt  on  a  part  of  the  lands  in  con- 
troversy. It  appears  from  the  evidence  that  Williams  in  1892  built  a 
house  for  the  respondents  upon  the  land  in  controversy,  which  he 
occupied  while  "looking  after  the  business"  for  them,  until  December, 
1896,  from  which  last-named  date  he  paid  rent  for  this  house  at  the 
rate  of  five  dollars  per  month  for  one  year,  and  four  dollars  per 
month  for  eight  months,  ceasing  to  pay  rent  in  August,  1898.  The 
bill  was  filed  on  the  11th  of  February,  1897.  It  will  be  noted  that 
when  this  bill  was  filed,  and  after  the  complainant  Williams  had  be- 
come the  owner  of  the  contract,  and  after  he  became  entitled  to  a 
deed  to  the  lands  from  the  respondents,  he  rented  a  part  of  the  lands, 
and  became  the  tenant  of  one  of  the  respondents.  His  occupancy  of 
the  house  which  is  situated  upon  the  lands  in  controversy,  for  looking 
after  the  business  of  the  respondents,  prior  to  December  2,  1896,  when 
he  commenced  to  pay  rent  therefor,  did  not  create  the  relation  of 
landlord  and  tenant.  That  relation  was  simply  that  of  employer  and 
employe  or  master  and  servant,  and  the  occupancy  of  the  house  was 
a  part  merely  of  the  contract  for  service,  and  operated  as  a  portion 
of  the  consideration  of  that  agreement.  People  v.  Annis,  45  Barb. 
(N.  Y.)  304;  Wilber  v.  Sisson,  53  Barb.  (N.  Y.)  258;  Haywood  v. 
Miller,  3  Hill  (N.  Y.)  90;  Kerrains  v.  People,  60  N.  Y.  221,  19  Am. 
Rep.  158;  Doyle  v.  Gibbs,  6  Lans.  (N.  Y.)  180;  Bowman  v.  Bradley, 
151  Pa.  351,  24  Atl.  1062,  17  L.  R.  A.  213;  McQuade  v.  Emmons,  38 
N.  J.  Law,  397;  School  Dist.  v.  Batsche,  106  Mich.  330,  64  N.  W. 
196,  29  L.  R.  A.  576 ;  East  Norway  Lake  Church  v.  Froislie,  V7  Minn. 
447,  35  N.  W.  260;    White  v.  Bayley,  10  C.  B.  (N.  S.)  227. 

The  relation  of  landlord  and  tenant  arose  in  December,  1896,  which, 
as  we  have  shown,  was  after  Williams  became  entitled  to  a  deed  from 
the  respondents  to  the  land.  We  have  the  question  presented  as  to 
wl>ether  Williams,  being  the  tenant  of  one  of  the  respondents  at  the 
time  of  the  filing  of  the  bill,  and  being  the  owner  of  the  contract  at 
the  time  he  entered  into  that  relation,  can  maintain  the  bill  to  require 
a  specific  performance  of  that  contract.  There  is  not  an  intimation 
that  there  was  any  understanding  or  agreement  that  his  rental  con- 
tract was  subject  to  his  right  to  have  the  contract  of  purchase  of 
which  he  was  part  owner  enforced,  or  that  his  landlord  ever  at  any 
time  in  any  way  recognized  his  rights  under  that  contract,  or  obliga- 
tion under  it  to  make  a  deed  to  him.  It  is  a  principle  universally 
recognized  and  enforced  by  courts  of  law  that  a  tenant  is  estopped  to 
dispute  the  title  of  his  landlord,  unless  his  landlord's  title  has  expired 
Of'been  extinguished,  either  by  operation  of  law  or  his  own  act,  after 


138  ESTATES    LESS    THAN    FREEHOLD 

the  creation  of  the  tenancy.  It  is  only  when  there  is  a  change  in 
the  condition  of  the  landlord's  title  for  the  worse  after  the  tenant 
enters  into  his  contract,  in  the  absence  of  fraud  or  mistake  of  fact, 
that  he  is  permitted  to  show  the  change  in  the  condition  of  the  title. 
Under  no  circumstances,  when  there  is  no  fraud  or  mistake  of  fact, 
will  it  be  permitted  to  deny  the  title  of  the  landlord  at  the  beginning 
of  his  term.  This  doctrine  has  been  enforced  by  this  court  from  its 
earliest  history.  Randolph  v.  Carlton,  8  Ala.  606;  Pope  v.  Harkins, 
16  Ala.  321;  Rogers  v.  Boynton,  57  Ala.  501;  Farris  v.  Houston, 
74  Ala.  162;  Robinson  v.  Holt,  90  Ala.  115,  7  South.  441  ;  Barlow  v. 
Dahm,  97  Ala.  415,  12  South.  293,  38  Am.  St.  Rep.  192;  Pugh  v. 
Davis,  103  Ala.  316,  18  South.  8,  49  Am.  St.  Rep.  30. 

In  2  McAdam,  Landl.  &  T.  p.  1341  et  seq.,  this  doctrine  is  stated 
in  this  language:  "For  reasons  of  public  policy  a  tenant  is  never 
allowed  to  dispute  his  landlord's  title  after  having  accepted  possession 
under  him.  This  rule  is  elementary.  The  estoppel  extends  equally 
to  landlord  and  tenant,  so  that,  while  the  tenant  is  estopped  from  deny- 
ing the  landlord's  title,  the  landlord  cannot  allege  that  he  had  no  title 
at  the  time  of  the  demise.  Where  a  tenant  enters  into  possession 
under  a  lease,  he  is  estopped  from  denying  the  title  of  his  landlord. 
The  tenant  must  surrender  the  possession  to  the  landlord  before  he 
can  assail  or  question  the  title  under  which  he  entered.  *  *  * 
'He  can  no  more  show  that  the  premises  belonged  to  the  state  than 
he  can  that  they  belonged  to  himself.  He  must  first  restore  the  pos- 
session which  he  obtained  from  his  landlord,  and  then,  as  plaintiff, 
he  may  avail  himself  of  any  title  which  he  has  been  or  may  be  able 
to  acquire.'  'The  foundation  of  the  estoppel  is  the  fact  of  the  one 
obtaining  possession  and  enjoying  possession  by  the  permission  of  the 
other.  And  so  long  as  one  has  this  enjoyment  he  is  prevented  by 
this  rule  of  law  from  turning  round  and  saying  his  landlord  has  no 
right  or  title  to  keep  him  in  possession.'  *  *  *  No  dispute  as  to 
the  title  will  be  tolerated  until  the  parties  are  placed  in  their  original 
position.  *  *  *  Nor  can  he  be  heard  to  deny  the  title  of  his 
landlord,  nor  can  he  rid  himself  of  such  relation,  without  a  complete 
surrender  of  the  possession  of  the  land.  To  allow  him  to  agree  and 
profess  to  hold  possession  under  one  as  landlord,  and  at  the  same  time 
to  hold  covertly  for  himself,  or  for  another's  advantage,  would  be 
to  encourage  and  uphold  a  gross  fraud,  which  the  law  will  never  do." 
Continuing,  the  author  says:  "He  must  first  surrender  up  the  prem- 
ises to  his  landlord  before  assuming  an  attitude  of  hostility  to  the 
title  or  claim  of  title  of  the  latter." 

It  may  be  urged  that  this  proceeding  is  in  equity,  and  that  the 
suit  involves  no  denial  by  Williams  of  his  landlord's  title.  We  ap- 
prehend that  it  is  of  no  consequence  in  what  court  this  question  of 
estoppel  may  arise.  If  it  exists,  there  is  no  reason  why  it  should 
not  be  enforced  by  courts  of  equity  as  well  as  by   courts  of  law. 


RIGHTS   AND    LIABILITIES   OF   LANDLORD   AND   TENANT  139 

Indeed,  such  a  distinction  has  never  been  asserted  or  recognized.  In 
the  case  of  Barlow  v.  Dahm,  97  Ala.  414,  12  South.  293,  38  Am.  St. 
Rep.  192,  which  was  a  bill  for  sale  of  land  for  partition  by  a  tenant 
against  his  landlord,  it  was  held  that  the  tenant  could  not  maintain 
the  bill  without  first  surrendering  the  possession.  And  in  Davis  v. 
Pou,  108  Ala.  443,  19  South.  362,  which  was  a  bill  by  a  tenant  to 
enjoin  a  writ  of  possession  and  execution  at  law  issued  upon  a  judg- 
ment in  unlawful  detainer  in  favor  of  his  landlord,  it  was  held  that 
there  was  no  equity  in  the  bill,  for  the  reason  that  the  tenant  could 
not  be  permitted  to  show  that  his  landlord's  title  had  terminated  be- 
fore the  beginning  of  the  tenancy.  In  Homan  v.  Moore,  4  Price,  5, 
it  was  held :  "A  lessee  proceeded  against  by  ejectment,  and  who  has 
received  notice  from  a  claimant  disputing  his  landlord's  title  not  to 
pay  him  any  more  rent,  and  has  been  threatened  with  distress  by  his 
landlord  if  he  does  not,  cannot  sustain  an  injunction  in  equity  to 
restrain  either  the  ejectment  or  distress,  for  he  is  not  permitted  by 
such  means  to  bring  his  landlord's  title  into  dispute."  In  Smith  v. 
Target,  2  Anstr.  529,  it  was  held  that  a  tenant,  though  threatened  with 
suits  at  law  on  a  title  adverse  to  his  landlord's,  cannot  make  them 
interplead.  Said  the  court :  "It  would  be  extremely  mischievous  if 
he  were  allowed,  in  his  own  right,  or  that  of  others,  to  call  in  ques- 
tion the  title  of  the  person  under  whom  he  holds."  To  the  same  ef- 
fect is  Johnson  v.  Atkinson,  3  Anstr.  798.  In  these  cases  the  tenant 
entered  upon  his  lease  after  the  termination  of  his  landlord's  title. 
The  exception,  however,  was  recognized  by  the  chancery  courts  of 
England,  as  exists  in  courts  of  law,  that,  where  the  landlord  has  by 
his'  own  act  given  title  to  another  subsequent  to  the  lease,  he  may 
thereby  entangle  the  tenant  in  embarrassment,  which  a  bill  of  inter- 
pleader may  be  the  most  proper  mode  of  quieting.  Cowtan  v.  Wil- 
liams, 9  Ves.  107;   Clarke  v.  Byne,  13  Ves.  386. 

This  brings  us  to  a  consideration  of  the  question  as  to  whether  the 
assertion  by  the  complainant  Williams  of  his  right  to  have  his  con- 
tract of  purchase  specifically  enforced  involves  a  denial  of  his  land- 
lord's title.  At  the  threshold  of  the  discussion  of  this  question  it  is 
necessary  to  ascertain  the  relation  of  the  complainants  to  the  re- 
spondents with  respect  to  the  interest  in  the  lands  and  in  the  contract 
of  sale  involved  in  this  controversy.  That  it  is  a  contract  of  sale, 
and  establishes  the  relation  of  vendor  and  vendee  between  the  par- 
ties, does  not  admit  of  disputation.  Assuming  this  as  true,  "in  law 
the  contract  is  wholly,  in  every  particular,  executory,  and  produces  no 
effect  upon  the  respective  estates  and  titles  of  the  parties.  The  ven- 
dor remains  to  all  intents  the  owner  of  the  land.  He  can  convey  it 
free  from  any  legal  claim  or  incumbrance.  He  can  devise  it.  On 
his  death  intestate  it  descends  to  his  heirs.  The  contract  in  no  man- 
ner interferes  with  his  legal  right  to  and  estate  in  the  land,  and  he 
is  simply  subjected  to  the  legal  duty  of  performing  the  contract,  or 


140     "  ESTATES    LESS    THAN    FREEHOLD 

\ 

paving  such  damages  as  a  jury  should  award.  On  the  other  hand, 
tHe  vendee  acquires  no  interest  whatever  in  the  land.  His  right  is 
a  mere  thing  in  action,  and  his  duty  is  a  debt — an  obligation — to  pay 
the  price;  and  on  his  death  both  this  right  and  this  duty  pass  to  his 
personal  representatives,  and  not  to  his  heirs.  In  short,  he  obtains  at 
law  no  real  property  or  interest  in  real  property.  The  relations  be- 
tween the  two  parties  are  wholly  personal.  No  change  is  made  until 
by  the  execution  and  delivery  of  a  deed  of  conveyance  the  estate  in 
the  land  passes  to  the  vendee.  Equity  views  all  these  relations  from 
a  very  different  standpoint.  In  some  respects,  for  some  purposes,  the 
contract  is  executory  in  equity  as  well  as  at  law;  but,  so  far  as  the 
interest  or  estate  in  the  land  of  the  two  parties  is  concerned,  it  is 
regarded  as  executed,  and  as  operating  to  transfer  the  estate  from 
the  vendor  and  to  vest  it  in  the  vendee.  This  theory  must  of  neces- 
sity make  a  great  difference  in  the  respective  rights,  duties,  and  rela- 
tions of  the  vendor  and  vendee.  One  of  the  grand  principles  of  eq- 
uity— one  of  the  great  foundation  stones  upon  which  the  whole  su- 
perstructure of  particular  doctrines  and  rules  is  erected — is  the  prop- 
osition: Equity  regards  and  treats  as  done  what  in  good  conscience 
ought  to  be  done.  This  principle,  so  brief  in  its  statement,  is  most 
broad  in  its  application  and  fruitful  in  its  results.  From  it,  as  the 
root,  spring  a  large  part  of  the  rules  which  make  up  the  body  of 
equitable  jurisprudence.  Apply  the  principle  to  the  present  case.  By 
the  terms  of  the  contract,  the  land  ought  to  be  conveyed  to  the  vendee, 
and  the  purchase  money  ought  to  be  transferred  to  the  vendor.  Eq- 
uity therefore  regards  these  as  done, — the  vendee  as  having  acquired 
the  property  in  the  land,  and  the  vendor  as  having  acquired  the  prop- 
erty in  the  price.  The  vendee  is  looked  upon  and  treated  as  owner 
of  the  land.  An  equitable  estate  has  vested  in  him  commensurate 
with  that  provided  for  by  the  contract,  whether  in  fee,  for  life,  or 
for  years.  Although  the  vendor  remains  owner  of  the  legal  estate,  he 
holds  it  as  a  trustee  for  the  vendee,  to  whom  all  the  beneficial  inter- 
est has  passed."  Pom.  Cont.  §  314.  See,  also,  Ashurst  v.  Peck,  101 
Ala.  499,  14  South.  541. 

The  foregoing  extract  clearly  defines  and  fixes  the  status  of  Wil- 
liams and  one  of  the  respondents  after  he  became  part  owner  of  the 
contract,  which  status  necessarily  existed  at  the  time  of  the  filing  of 
the  bill,  and  continued  up  to  the  present  time.  It  is  only  upon  the 
theory  of  the  existence  of  this  status  that  he  can  have  relief  upon  the 
bill,  and,  of  necessity,  the  prosecution  of  the  suit  for  the  specific  per- 
formance of  the  contract  is  an  assertion  by  him  that  at  the  time  of 
the  filing  of  the  bill  he  was  the  owner  of  the  land.  This  assertion 
he  cannot  be  permitted  to  make  until  he  surrenders  up  the  premises 
to  his  landlord,  since  it  puts  him  in  a  position  of  repudiating  or  of 
ridding  himself  of  the  relation  of  tenant,  which  he  bore  to  one  of 
the  respondents  when  the  bill  was  filed,  or  of  assuming  an  attitude 


TERMINATION    OF   ESTATES   FOR   YEARS  141 

of  hostility  to  the  title  or  claim  of  title  of  his  landlord.  "A  landlord 
can  only  be  required  to  litigate  title  with  the  tenant  upon  the  vantage 
ground  of  possession."  Barlow  v.  Dahm,  supra.  Surely  it  will  not 
be  controverted  that  the  bill  involves  a  litigation  of  title  between 
Williams,  the  tenant,  and  Mrs.  Davis,  his  landlord.  For,  as  we  have 
said,  Williams  asserts  by  the  bill  his  ownership  of  the  land,  which 
is  denied  by  the  respondent  Mrs.  Davis. 

It  is  argued,  on  the  authority  of  Bogan  v.  Daughdrill,  51  Ala.  312, 
that  this  court  can  correct  the  decree  of  the  lower  court,  and  grant 
relief  to  complainants,  if  entitled  to  it,  for  the  portion  of  the  land 
not  in  the  possession  of  Williams,  at  the  date  of  the  filing  of  the 
bill,  as  tenant.  Assuming  that  complainants  are  entitled  to  that  re- 
lief, without  deciding  it,  the  record  furnishes  no  sufficient  data  upon 
which  to  predicate  such  a  decree.  It  fails  to  disclose  with  any  de- 
gree of  accuracy  the  area  of  the  parcel  in  the  possession  of  Williams. 
To  undertake  to  eliminate  it  out  of  the  land,  and  to  render  a  decree 
requiring  the  respondents  to  execute  a  deed  for  the  balance,  would,  at 
best,  be  but  a  conjecture  as  to  the  area  or  boundaries  of  the  land 
decreed  to  be  conveyed.  The  ownership  of  the  contract  being  joint, 
and  the  enforcement  of  it  being  sought  jointly,  the  familiar  doctrine 
that  both  complainants  must  be  entitled  to  relief,  or  neither  can  have 
it,  applies.  Williams  not  being  entitled  to  relief,  the  bill  must  be  dis- 
missed. Wilkins  v.  Judge,  14  Ala.  135 ;  Moore  v.  Moore,  17  Ala. 
631 ;  Tucker  v.  Holley,  20  Ala.  426;  Plunkett  v.  Kelly,  22  Ala.  655; 
Plant  V.  Voegelin,  30  Ala.  160;  Vaughn  v.  Lovejoy,  34  Ala.  437; 
James  v.  James,  55  Ala.  525;  Larkin  v.  Mason,  71  Ala.  231 ;  3  Brick. 
Dig.  Z7Z,  §  87. 

This  dismissal  will  not  preclude  the  rights  of  complainants  to  file 
another  bill,  if  they  are  so  advised.    Reversed  and  rendered. 

Sharps  and  Dowdell,  JJ.,  dissent. 


III.  Termination  of  Estates  for  Years* 
1.  Destruction  of  Premises 


GAY  V.  DAVEY. 
(Supreme  Court  of  Ohio,  1890.    47  Ohio  St.  396,  25  N.  E.  425.) 

Error  to  district  court,  Hamilton  county. 

Dickman,  J.  On  the  7th  day  of  July,  A.  D.  1879,  James  P.  Gay 
leased  to  John  R,  Davey  and  A.  B.  Allen,  the  defendants  in  error, 
certain  premises  in  the  city  of  Cincinnati  for  the  term  of  three  years 
from  that  day,  the  lessees  to  have  the  privilege  of  a  further  term  of 

6  For  discussion  of  principles,  see  Burdiek,  Real  Prop.  §  82. 


142  ESTATES    LESS    THAN    FREEHOLD 

two  years,  commencing  with  the  7th  day  of  July,  1882.  The  prem- 
ises, used  for  manufacturing  purposes,  are  described  as  situated  in  the 
city  of  Cincinnati,  being  three  rooms  on  the  front  of  the  first,  sec- 
ond, and  third  floors  of  James  P.  Gay's  main  building  fronting  on 
the  north  side  of  New  street,  and  the  room  in  the  third  story  of  the 
addition  to  the  main  building;  also  a  strip  of  ground  lying  on  the 
west  side  of  the  main  building,  being  12  feet  in  width  on  the  north 
side  of  New  street,  and  running  back  the  same  width  to  the  building 
described  as  the  addition  to  the  main  building,  the  lessor  to  erect  a 
one-story  brick  office  12  feet  by  16  feet  adjoining  the  southwest  cor- 
ner of  the  building  on  New  street,  for  occupancy  by  the  lessees.  As 
rent,  the  lessees  were  to  pay  during  the  term  of  three  years  the  sum 
of  $125  per  month,  payable  monthly,  commencing  on  the  7th  day  of 
August,  1879,  and  on  the  7th  day  of  each  and  every  month  there- 
after during  such  term.  The  entire  building,  including  the  apartments 
leased  to  Davey  and  Allen,  was  destroyed  by  fire  on  the  11th  day  of 
December,  1880,  but  was  rebuilt  by  the  lessor,  and  was  ready  for  oc- 
cupancy in  the  early  part  of  January,  1881. 

\\'hen  the  building  was  restored,  the  lessees  declined  to  pay  rent 
from  the  time  of  restoration,  and  the  lessor  commenced  suit  in  the 
superior  court  of  Cincinnati  to  recover  the  rent  from  January  7,  1881. 
to  May  7,  1881.  The  lessees  set  up  in  defense  that,  by  the  terms  and 
provisions  of  the  lease  under  which  they  had  occupied  the  premises, 
it  was  stipulated  that,  if  the  occupied  premises  were  destroyed  or 
rendered  untenantable  by  fire  or  unavoidable  accident,  they  were  not 
to  be  required  to  pay  any  rent  thereafter ;  that  the  premises  were  to- 
tally destroyed  on  the  11th  day  of  December,  1880;  that  they  did  not 
use,  occupy,  or  enjoy  the  premises  at  any  time  thereafter ;  that  the 
premises  were  destroyed  without  any  default  or  neglect  on  their  part ; 
and  that  the  lessees  thereupon  surrendered  possession  of  the  prem- 
ises to  the  lessor.  The  lessor,  in  reply,  denied  that  the  premises  in- 
cluded in  the  lease  were  totally  destroyed  by  fire,  and  alleged  that 
there  was  only  a  partial  destruction  of  the  same,  the  brick  office  not 
being  materially  injured,  and  continuing  tenantable;  and  further  de- 
nied that  the  premises  were  ever  surrendered  to  the  lessor  by  the 
lessees.  The  lease  contained  the  covenant  "that  said  lessees  will  pay 
said  rents,  in  manner  aforesaid,  except  said  premises  shall  be  de- 
stroyed or  rendered  untenantable  by  fire  or  unavoidable  accident." 
Before  the  trial,  the  death  of  the  plaintifif  was  suggested,  and  it  was 
ordered  that  the  action  be  revived  in  the  name  of  Sarah  E.  Gay,  the 
plaintiff  in  error,  as  executrix  of  the  last  will  and  testament  of  James 
P.  Gay,  deceased.  On  the  trial,  a  jury  being  waived,  the  court,  upon 
the  testimony,  foiind_in  favor  of  the  plaintiff,  and  entered  judgment 
for  the  amount  claimed,  with  interest  and  costs.  The  defendants 
thereupon  filed  their  motion  to  set  aside  the  judgment,  and  for  a  new 
trial,  mainly  on  the  ground  that  the  finding  of  the  court  was  against 


TERMINATION    OF    ESTATES   FOR   YEARS  143 

the  weight  of  the  evidence,  which  motion  the  court  overruled.  The 
defendants  excepted,  and  by  bih  of  exceptions  placed  all  the  testi- 
mony on  the  record.  The  defendants,  on  petition  in  error  in  the 
district  court,  assigned  for  error  that  the  judgment  rendered  by  the 
superior  court  was  against  the  weight  of  the  evidence,  and  that  the 
superior  court  erred  in  overruling  their  motion  for  a  new  trial.  The 
district  court  reversed  the  judgment  of  the  superior  court,  and,  pro- 
ceeding to  render  such  judgment  as  it  considered  that  court  should 
have  rendered,  rendered  a  final  judgment  for  the  lessees,  John  R. 
Davey  and  A,  B.  Allen,  and  dismissed  the  action  of  Sarah  E.  Gale, 
executrix. 

By  this  proceeding,  it  is  sought  to  reverse  the  judgment  of  reversal, 
as  also  the  final  judgment  rendered  by  the  district  court.  Material 
facts  necessary  to  sustain  a  judgment  were  in  issue  between  the  par- 
ties. The  main  ground  upon  which  the  defendants  predicated  their 
motion  to  set  aside  the  judgment,  and  for  a  new  trial,  was  that  the 
finding  of  the  court  was  against  the  weight  of  the  evidence.  When 
the  reviewing  court  reversed  the  judgment  of  the  court  below  for 
error  in  overruling  such  motion,  the  only  judgment  which  should 
have  been  rendered  after  reversal  was  to  grant  a  new  trial,  as  moved 
for  in  the  trial  court.  The  case  in  the  district  court  was  not  one  for 
a  final  judgment.  The  lessees  were  not  entitled  to  judgment  on  the 
pleadings.  There  was  no  agreed  statement  of  facts,  and  no  finding 
of  facts  by  the  court  to  which  the  case  had  been  submitted  on  the 
evidence;  and  it  was  a  case  in  which  the  right  existed  to  demand  a 
jury.  For  aught  appearing  to  the  contrary,  upon  remanding  the  case 
for  further  proceedings,  any  unavoidable  defect  in  the  evidence,  on 
the  hearing  before  the  court,  might,  in  furtherance  of  justice,  have 
been  supplied  in  a  second  trial.  We  are  of  the  opinion  therefore  that, 
in  reversing  the  judgment  of  the  superior  court,  the  district  court 
erred  in  rendering  final  judgment  for  the  lessees  Davey  and  Allen, 
instead  of  remanding  the  case  for  a  new  trial.  See  Emery's  Sons  v. 
Bank,  25  Ohio  St.  360,  18  Am.  Rep.  299 ;  Miller  v.  Sullivan,  26  Ohio 
St.  639 ;   Stivers  v.  Borden,  20  Ohio  St.  232. 

In  remanding  the  cause  for  further  proceedings,  there  are  legal 
principles  that  claim  consideration.  Where  the  tenant,  who  expressly 
covenants  to  pay  rent,  has  not  protected  himself  by  a  saving  clause  in 
the  lease,  the  proposition  is  generally  true  that  he  will  be  bound  to 
continue  the  payment  of  rent  after  the  destruction  of  the  tenement 
by  fire  or  unavoidable  accident,  and  will  have  no  relief  against  such 
express  covenant.  Having  by  his  own  contract  created  a  duty  or 
charge  upon  himself,  he  will  be  bound  to  make  it  good,  notwithstand- 
ing any  accident  or  inevitable  necessity,  because  against  such  casualty 
he  might  have  provided  by  his  own  contract,  if  he  had  thought  proper 
to  do  so.  Linn  v.  Ross,  10  Ohio,  412,  36  Am.  Dec.  95.  But  under  the 
facts,  as  it  is  claimed  they  exist,  the  defendants  in  error  insist  that 


144  ESTATES    LESS    THAN    FREEHOLD 

they  are  discharged  from  the  payment  of  rent  by  the  stipulation  in  the 
lease  that  if  the  premises  occupied  by  them  should  be  destroyed,  or 
made  untenantable  by  fire  or  unavoidable  accident,  they  were  not 
thereafter  to  be  required  to  pay  rent.  If  the  lease  had  contained  a 
covenant  on  the  part  of  the  lessor  to  rebuild  the  premises  if  destroyed, 
and  he  had  rebuilt  in  accordance  with  his  covenant,  the  stipulation 
would  not  discharge  the  lessees  from  liability  to  pay  rent.  But  the 
lessor  was  under  no  obligation  to  rebuild,  and  the  rights  of  his  ten- 
ants secured  by  stipulation  in  the  lease,  and  accruing  immediately  upon 
the  destruction  of  the  premises  by  fire,  were  not  to  be  kept  in  abeyance 
by  the  contingency  of  the  lessor's  concluding  to  rebuild.  If,  however, 
after  the  building  was  burned,  the  owner  was  requested  and  induced 
by  the  lessees  to  rebuild  for  the  lessees'  use  and  occupation,  they  could 
not  justly  avoid  the  payment  of  rent,  after  the  building  had  been 
restored  to  its  former  condition. 

Furthermore,  it  is  contended  in  behalf  of  the  defendants  in  error 
that  they  are  relieved  from  the  payment  of  rent  under  section  4113 
of  the  Revised  Statutes.  That  section  reads  as  follows :  "The  lessee 
of  any  building  which,  without  any  fault  or  neglect  on  his  part,  is 
destroyed  or  so  injured  by  the  elements,  or  other  cause,  as  to  be  unfit 
for  occupancy,  shall  not  be  liable  to  pay  rent  to  the  lessor  or  owner 
thereof,  after  such  destruction  or  injury,  unless  otherwise  expressly 
provided  by  written  agreement  or  covenant ;  and  the  lessee  shall  there- 
upon surrender  possession  of  the  premises  so  leased."  The  obvious 
design  of  this  statutory  provision  is  to  relieve  from  hardship  the 
tenant  who  has  inadvertently  neglected  to  protect  himself  by  express 
covenant  in  his  lease  against  the  necessity  of  paying  rent  after  the 
leased  premises  have  been  destroyed  by  fire  or  other  casualty.  But, 
to  secure  the  benefit  of  the  statute,  the  tenant  must  surrender  or  yield 
up  all  that  remains  of  the  premises  embraced  in  the  lease  without  any 
purpose  or  intention  of  resuming  possession  thereof.  The  legislature 
has  absolved  the  tenant  from  an  onerous  obligation,  but  the  burden  is 
removed  only  upon  his  compliance  with  the  statutory  condition.  The 
statute,  in  case  the  buildings  are  destroyed,  does  not  clothe  the  land- 
lord with  the  power  of  terminating  the  lease,  and  if  the  tenant  alone 
is  to  have  the  option  of  so  doing,  and  may  be  discharged  from  the 
obligation  to  pay  rent,  he  must  give  up  the  possession  and  control  of 
the  premises  to  him  who  is  entitled  to  the  reversion.  If  he  would 
preserve  the  lease  in  full  force,  and  avail  himself  of  its^  advantages,  he 
must  also  bear  any  incidental  hardship  that  may  arise  during  its  con- 
tinuance. The  clause  in  the  statute  for  surrendering  possession  of 
the  premises  would  be  without  significance,  if  not  construed  as  quali- 
fying the  provision  for  a  release  of  the  tenant  from  the  payment  of 
rent.  In  Johnson  v.  Oppenheim,  55  N.  Y.  280,  the  court  of  appeals, 
in  construing  chapter  345  of  the  New  York  Laws  of  1860,  which  is 
substantially  the  same  as  the  statute  of  Ohio,  in  pari  materia,  say: 


TERMINATION    OF    ESTATES   FOR   YEARS  145 

"The  act  provides  that,  upon  the  destruction  or  injury  of  leasehold 
buildings  so  that  the  same  are  untenantable,  the  tenant  shall  not  be 
liable  or  bound  to  pay  rent,  and  that  he  may  thereupon  quit  and  sur- 
render the  possession  of  the  premises.  The  tenancy  is  not  made  abso- 
lutely to  cease,  except  at  the  option  of  the  tenant.  He  is  relieved  from 
his  obligation,  if  he  chooses  to  avail  himself  of  the  provisions  of 
the  act,  or  he  may  perform  the  covenants  of  his  lease  and  retain  the 
benefit  of  it ;  but  he  cannot  have  the  benefit  of  the  law,  and  at  the 
same  time  repudiate  its  obligations.  If  he  elects  absolution  from  its 
obligations,  the  act,  by  necessary  implication,  imposes  as  a  condition 
the  surrender  of  the  premises."  Such  is  manifestly  the  correct  inter- 
pretation of  the  statute. 

But  it  is  contended  the  rule  is  well  settled  that,  in  the  absence  of 
covenant,  when  the  subject-matter  of  the  demise  is  destroyed  by 
fire  or  other  casualty — as  a  house,  where  the  land  on  which  it  rests 
is  not  rented,  or  apartments  in  the  house,  whether  for  purposes  of 
trade  or  otherwise — the  destruction  of  the  building  terminates  the 
relation  of  landlord  and  tenant,  and  there  is  nothing  left  to  surrender 
to  the  owner  or  lessor.  While  this  may  be  a  correct  statement  of  the 
general  principle,  the  contract  of  lease  in  the  case  at  bar  was  entire, 
and  embraced,  not  only  the  rooms  in  the  destroyed  building,  but  also 
the  one-story  brick  office,  and  the  strip  of  ground  lying  on  the  west 
side  of  the  main  building.  If,  therefore,  the  building  was  totally 
destroyed  by  fire,  and  a  surrender  of  the  leased  rooms  became  impos- 
sible, it  could  not  be  so  said  of  the  office  and  strip  of  ground,  if  the 
lessees,  after  the  fire,  continued  to  use  and  occupy  the  same  until 
the  building  was  restored  and  ready  for  occupancy.  As  to  those  por- 
tions of  the  demised  premises  that  were  not  destroyed,  and  remained 
tenantable,  there  was  no  apparent  obstacle  in  the  way  of  a  surrender 
as  contemplated  in  the  statute. 

The  final  judgment  in  favor  of  Davey  and  Allen  should  be  reversed, 
and  cause  remanded.    Judgment  accordingly.'^ 

7  It  is  well  established  by  the  decisions  that,  at  common  law,  where  a  ten- 
ant of  premises  accidentally  destroyed  has  expressly  covenanted  to  pay  rent, 
he  is  not  relieved  from  his  duty  to  pay  in  absence  of  an  express  covenant  or 
agreement  to  that  effect.  Cook  v.  Anderson,  85  Ala.  99,  4  South.  713  (18S7). 
Compare,  however,  O'Byrne  v.  Henley,  161  Ala.  620,  50  South.  S3,  23  L.  R.  A. 
(N.  S.)  496  (1909);  Mayer  v.  Morehead.  106  Ga.  434,  32  S.  E.  349  (1898);  Bowen 
V.  Clemens,  161  Mich.  493,  126  N.  W.  639,  137  Am.  St.  Rep.  521  (1910);  Viterbo 
V.  Friedlander,  120  IT.  S.  707,  7  Sup.  Ct.  962,  .30  L.  Ed.  776  (1887).  Where, 
however,  there  Is  a  destruction  of  the  entire  subject-matter,  as  in  case  of  a 
room  or  an  apartment,  with  no  interest  in  the  land,  many  of  the  cases  make 
an  exception  to  the  general  rule  governing  the  tenant's  liability.  See  McMil- 
lan V.  Solomon,  42  Ala.  356.  94  Am.  Dec.  654  (1868) ;  Ainsworth  v.  Ritt.  38  Cal. 
89  (1869);  Humiston  v.  Wheeler,  175  111.  514,  51  N.  E.  893  (1898);  Harrington 
V.  Watson,  11  Or.  143,  3  Pac.  173,  50  Am.  Rep.  465  (1883). 

Bued.Cas.Real  Prop. — 10 


146  ESTATES    LESS   THAN    FREEHOLD 

(B)  Tenancies  at  Will,  from  Year  to  Year,  and  at  Sufferance 
I.  Tenancies  at  Will — Creation  * 


HUNTER  V.  FROST. 

(Supreme  Court  of  Minnesota,  1891.    47  Minn.  1,  49  N.  W.  327.) 

Appeal  irora  district  court,  Ramsey  county ;   Egan,  Judge. 

Mitche:ll,  J.  The  plaintiff  leased  to  defendant  a  tenement  for  the 
term  of  13  months  from  April  1,  1888,  for  an  agreed  rent  of  $540  per 
annum,  payable  in  equal  installments  of  $45,  in  advance,  on  the  first 
day  of  each  month.  The  defendant  entered  and  occupied  the  premises 
during  the  term,  and  after  its  expiration  held  over  and  continued  in 
possession,  and  paid  rent  to  the  plaintiff,  in  accordance  with  the  terms 
of  the  lease  up  to  and  including  the  month  of  November,  1889.  Several 
days  prior  to  October  30,  1889,  the  defendant  served  upon  plaintiff' 
written  notice  that  he  would  vacate  the  premises  on  November  30th 
next  ensuing.  In  pursuance  of  this  notice  lie  vacated  them,  and  has 
not  since  that  time  occupied  them  or  paid  rent.  This  action  is  to  re- 
cover rent  from  December  1,  1889,  to  May  1,  1890. 

It  is  not  questioned  but  that  at  common  law  the  defendant,  by  hold- 
ing over  after  the  end  of  the  term  without  any  new  agreement,  and 
paying  rent  according  to  the  terms  of  the  prior  tenancy,  which  was  ac- 
cepted by  the  plaintiff,  became  a  tenant  from  year  to  year,  and  that  this 
tenancy  could  not  be  terminated  by  either  party,  except  upon  due  no- 
tice, (at  common  law,  six  months,)  terminating  at  the  end  of  the  first  or 
any  subsequent  year,  (May  1st.)  But  defendant's  contention  is  that 
tenancies  from  year  to  year  have  been  abolished  by  the  statutes  of  this 
state,  and  converted  into  tenancies  at  will,  which  may  be  terminated  at 
any  time  by  either  party  by  giving  the  length  of  notice  provided  by 
Gen.  St.  1878,  c.  75,  §  40,  which,  in  this  case,  would  be  one  month,  the 
rent  reserved  being  payable  monthly.  While  tenancies  from  year  to  year 
are  the  creation  of  judicial  decisions,  based  upon  principles  of  policy 
and  justice,  out  of  what  were  anciently  tenancies  strictly  at  will,  termi- 
nable at  any  time  by  either  party  without  notice,  yet  such  tenancies  had 
become  so  well  established  and  so  fully  recognized  in  the  common  law 
that  it  would  naturally  be  supposed  that,  if  it  had  been  intended  to  con- 
vert them  into  mere  tenancies  at  will,  it  would  have^  been  done  by  ex- 
press and  clear  language,  and  not  left  to  mere  inference  or  implication. 
We  think  we  are  safe  in  saying  that,  although  our  statutes  bearing  up- 
on the  subject  have  always  been  the  same  as  now,  it  has  never  been  the 
understanding  of  the  bar  of  the  state  that  they  had  introduced  any 
such  radical  change  in  the  law  as  that  now  contended  for.    Evidently 

8  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  83-86. 


TENANCIES   AT   WILL — CREATION  147 

this  court,  in  considering  the  cases  of  Gardner  v.  Commissioners,  21 
Minn.  38,  and  Dayton  v.  Craik,  26  Minn.  134,  1  N.  W.  813,  assumed 
that  tenancies  from  year  to  year  still  existed  in  this  state.  It  was 
squarely  so  decided  in  Smith  v.  Bell,  44  Minn.  524.  47  N.  W.  263,  al- 
though the  question  was  not  very  fully  argued  in  that  case,  and  we 
would  not  feel  bound  to  follow  it  if  fully  convinced  that  it  was  wrong. 

Counsel  for  defendant  does  not  claim  that  there  is  any  express  pro- 
vision of  statute  abolishing  such  tenancies,  but  he  relies  on  certain  pro- 
visions which  he  claims  effect  that  result  by  implication.  The  first  is 
Gen.  St.  c.  45,  §  1,  dividing  estates  in  land  into  estates  of  inheritance, 
estates  for  life,  estates  for  years,  estates  at  will  and  by  sufferance ;  the 
argument  bfeing  that,  as  estates  from  year  to  year  are  not  named,  there- 
fore they  are  impliedly  abolished.  The  next  is  Gen.  St.  c.  75,  §  40,. 
which  provides  that  all  estates  at  will  may  be  determined  by  either  par- 
ty by  three  months'  notice  in  writing  for  that  purpose  given  to  the  oth- 
er party,  and,  when  the  rent  reserved  is  payable  at  periods  of  less  than 
three  months,  the  term  of  such  notice  shall  be  sufficient  if  it  is  equal  to 
the  interval  between  the  times  of  payment.  It  is  argued  that  by  this 
the  legis'lature  intended  to  provide  for  the  termination  of  all  estates 
which  did  not  terminate  themselves  without  notice,  and  made  provision 
for  all  the  estates,  which  it  recognized,  which  did  not  terminate  them- 
selves, to-wit,  estates  at  will.  Reference  is  also  made  to  Gen.  St.  c.  84, 
§  11,  governing  summary  proceedings  for  the  recovery  of  possession  by 
a  landlord.  It  is  said  that  this  was  evidently  intended  to  give  a  land- 
lord a  summary  remedy  whenever  the  relation  of  landlord  exists,  but, 
as  the  statute  only  refers  to  two  classes  of  cases  in  which  the  remedy 
may  be  employed,  when  the  tenant  is  not  in  arrears  of  rent,  to-wit, 
when  the  tenant  holds  over  after  the  termination  of  the  time  for  which 
the  premises  were  demised,  and  where  a  tenant  at  will  holds  over  after 
the  determination  of  any  such  estate  by  notice  to  quit,  therefore,  if  ten- 
ancies from  year  to  year  still  exist,  the  tenant  in  such  cases  could  only 
be  evicted  by  an  action  of  ejectment. 

It  seems  to  us  that  counsel  has  been  led  into  error  by  failing  to  duly 
consider  the  state  of  the  common  law  when  the  statutes  were  passed, 
and  by  assuming  that,  when  they  speak  of  tenancies  at  will,  they  refer 
exclusively  to  tenancies  strictly  at  will ;  that  is,  those  which,  but  for 
the  statute  in  reference  to  notices  to  quit,  would  have  been  terminable 
at  any  time  by  either  party  without  notice.  It  was  determined  very  an- 
ciently by  the  common  law,  upon  principles  of  justice  and  policy,  that 
estates  at  will  were  equally  at  the  will  of  both  parties,  and  neither  of 
them  was  permitted  to  exercise  his  will  in  a  wanton  manner,  and  con- 
trary to  equity  and  good  faith,  but  that  they  could  only  be  terminated 
by  notice  for  a  longer  or  shorter  period,  depending  usually  upon  the 
nature  of  the  original  demise.  At  first  there  was  no  other  rule  but 
that  the  notice  should  be  a  reasonable  one.  Because  of  the  uncertainty 
of  this  rule,  the  courts  early  adopted,  as  far  as  possible,  some  fixed 
period  as  being  reasonable.    In  those  tenancies  which,  from  the  nature 


lis  ESTATES    LESS    THAN    FREEHOLD 

of  the  original  demise,  they  construed  to  be  tenancies  from  year  to 
year,  the  courts  adopted  six  months  as  a  reasonable  notice,  holding  that 
such  tenancies  could  only  be  determined  by  a  notice  of  at  least  six 
months,  terminating  at  the  expiration  of  the  first  or  any  succeeding 
year.  And  in  those  cases  which  did  not  come  within  the  class  of  ten- 
ancies from  year  to  year,  because  by  implication  for  some  definite  peri- 
od less  than  a  year,  the  rule  was  generally  adopted  that  the  time  of  no- 
tice should  be  governed  by  the  length  of  time  specified  as  the  interval 
between  the  times  of  payment  of  rent,  and  should  be  equal  to  one  of 
these  intervals,  and  must  end  at  the  expiration  thereof.  The  result  was 
that  at  common  law  estates  at  will,  in  the  strict  sense,  became  almost 
extinguished  at  a  very  early  date,  under  the  operation  of  judicial  deci- 
sions. Indeed,  it  would  have  been  difficult  to  conceive  of  an  instance 
of  such  a  tenancy,  except  where  created  by  the  express  contract  of  the 
parties  to  that  effect.  But  they  still  remained  substantially  tenancies 
at  will,  except  that  such  will  could  not  be  determined  by  either  party 
without  due  notice  to  quit. 

The  enumeration  or  classification  ®f  estates  adopted  by  ouf,  statutes 
is  but  declaratory  of  that  found  in  all  writers  on  the  common  law,  even 
after  the  doctrine  of  tenancies  from  year  to  year  had  been  fully  estab- 
lished by  the  decisions  of  the  courts.  Estates  in  land,  less  than  free- 
hold, have  always  been  classified  as  of  three  sorts:  (1)  Estates  for 
years;  (2)  estates  at  will ;  (3)  estates  by  sufferance.  2  Bl.  Comm.  139. 
This  classification  was  first  incorporated  in  statutory  form  in  the  old 
Revised  Statutes  of  New  York,  and  from  them  borrowed  successively 
by  Michigan  and  Wisconsin,  and  perhaps  other  states ;  but  in  none  of 
them  was  it  ever  held,  or  even  suggested,  that  the  statute  affected  or  in 
any  way  changed  the  common  law  as  to  tenancies  from  year  to  year. 
JDid  the  statutory  enumeration  necessarily  exclude  tenancies  from  year 
to  year,  there  would  be  much  force  in  defendant's  argument.  But,  so 
far  from  this  being  the  case,  they  may  be  included  in  either  estates  for 
years  or  estates  at  will,  or  both,  as  they  possess  many  of  the  qualities 
of  each.  A  tenancy  from  year  to  year,  though  indeterminate  as  to  du- 
ration until  notice  given,  has  most  of  the  qualities  and  incidents  of  a 
term  for  years,  and,  when  notice  has  been  given,  the  term  is  as  much 
fixed  for  a  definite  period  as  any  term  for  years.  A  tenant  from  year 
to  year  has  a  lease  for  a  year  certain,  with  a  growing  interest  during 
every  year  thereafter,  springing  out  of  the  original  contract,  and  parcel 
of  it.  Such  an  estate  is  not  determined  by  the  death  of  either  lessor  or 
lessee;  it  is  assignable  and  demisable,  and  may  be  pleaded  as  a  term. 
But,  although  it  has  many  of  the  qualities  of  a  term  for  years,  yet  it  is, 
as  already  remarked,  substantially  a  tenancy  at  will  except  that  such 
will  cannot  be  determined  by  either  party  without  due  notice  to  quit, 
terminating  at  the  end  of  a  year.  1  Woodf.  Landl.  &  Ten.  219.  For 
purposes  of  notice  to  quit,  it  is  a  general  tenancy  at  will.  2  Tayl. 
Landl.  &  Ten.  §  467,  and  cases  cited.     And  for  purposes  of  general 


TENANCIES   AT    WILL— CREATION  149 

classification  it  is  treated  as  a  species  of  tenancy  ^t  will,  and  as  proper- 
ly so  as  are  those  tenancies  which  by  implication  are  held  to  be  for 
some  period  less  than  a  year,  as  from  quarter  to  quarter,  or  from  month 
to  month,  where  notice  to  quit  is  also  necessary  in  order  to  terminate 
them ;  the  only  difference  being  as  to  the  length  of  the  notice  and  the 
time  it  should  terminate. 

Notwithstanding  what  was  decided  in  Smith  v.  Bell,  supra,  we  have 
come  to  the  conclusion,  upon  fuller  examination,  that  the  provisions  of 
chapter  75,  §  40,  in  relation  to  notices  to  quit,  were  intended  to  apply 
to  all  estates  which  do  not  terminate  themselves  without  notice,  and 
that  for  the  purposes  of  such  notices  a  tenancy  from  year  to  year  is  a 
tenancy  at  will.  In  some  of  the  cases  cited  by  plaintiff  it  was  held,  as 
in  Smith  v.  Bell,  that  similar  statutes  apply  only  to  the  notice  required 
to  terminate  a  tenancy  at  will,  and  have  no  application  to  a  tenancy 
from  year  to  year.  In  one  of  these  cases  it  is  said  that  the  purpose  of 
the  statute  was  to  give  tenants  at  will  the  right  to  the  notice  therein 
specified  before  they  could  be  dispossessed,  whereas,  before  such  enact- 
ment, they  were  not  entitled  to  any  notice  whatever ;  in  other  words, 
that  the  statute  was  to  give  the  tenant  the  right  to  notice  in  cases 
which,  but  for  the  statute,  would  have  been  tenancies  strictly  at  will. 
It  seems  to  us  that,  in  placing  this  construction  upon  such  statutes,  the 
courts  have  entirely  overlooked  the  fact  that  tenancies  strictly  at  will 
had  already  practically  ceased  to  exist,  except  where  the  parties  had  ex- 
pressly contracted  that  the  tenancy  might  be  terminated  at  any  time 
without  notice ;  and  as  in  such  cases  the  contract  of  the  parties,  and 
not  the  statute,  would  control,  the  result  would  be  that  such  a  con- 
struction would  render  the  statute  meaningless. 

We  have  therefore  reached  the  conclusion  that  the  description  of  es- 
tate commonly  known  as  a  "tenancy  from  year  to  year"  is  compre- 
hended in  the  term  "estates  at  will,"  as  used  in  chapter  75,  §  40.  But 
this  section  has  reference  only  to  the  length  of  notice,  and  does  not  as- 
sume to  otherwise  change  or  affect  the  nature  of  the  tenancy,  or  the 
existing  rules  of  law  as  to  when  the  notice  should  terminate.  „Kor  ex- 
ample, where,  by  implication,  the  tenancy  is  from  quarter  to  quarter  or 
from  month  to  month,  the  rent  being  payable  quarterly  or  monthly,  the 
jiotice  must  still  terminate  with  the  quarter  or  month ;  and,  where  the 
tenancy  is  from  year  to  year,  the  notice  must  terminate  with  a  year, 
although  the  length  of  it  may  now  be  shorter  than  six  months,  as  for- 
merly required  at  common  law.  Consequently,  while  the  notice  given 
by  defendant  in  this  case  was  sufficient  as  to  length,  yet  it  was  wholly 
ineffectual,  because  not  terminating  at  the  end  of  a  year. 

There  is  nothing  in  the  point  that  there  can  be  no  such  thing  as  a 
tenancy  from  year  to  year  in  this  state  because  of  the  statute  of  frauds. 
Gen.  St.  c.  41,  §  10.  The  courts  have  uniformly  held  that  tenancies 
from  year  to  year  were  not  affected  by  such  a  statute.  The  cases  from 
Massachusetts  and  Maine  are  not  in  point,  because  expressly  placed 


150  ESTATES    LESS    THAN    FREEHOLD 

upon  their  statutes  providing  that  an  estate  or  interest  in  land,  created 
without  an  instrument  in  writing,  "shall  have  the  force  and  effect  of 
an  estate  at  will  only."    Judgment  affirmed.^ 


WEED  V.  LINDSAY. 
(Supreme  Court  of  Georgia,  1S02.    88  Ga.  686,  15  S.  E.  836.  20  L.  R.  A.  33.) 

Error  from  city  court  of  Savannah ;    W.  D.  Hardin,  Judge. 

Summary  proceedings  by  Joseph  D.  Weed  against  Lindsay  &  Mor- 
gan to  obtain  possession  of  certain  land.  Judgment  for  defendants. 
Plaintiff  brings  error.    Reversed. 

The  following  is  the  official  report: 

On  October  15,  1890,  Weed  obtained  a  warrant  to  dispossess  Lind- 
say &  Morgan  of  certain  real  estate  in  Savannah,  alleging  in  his  affi- 
davit therefor  that  the  property  was  rented  to  Lindsay  &  Morgan,  who 
took  possession  in  October,  1889,  as  tenants  at  will ;  that  on  April  8, 
1890,  he  gave  them  notice  that  he  desired  the  possession  of  his  said 
property  at  the  expiration  of  two  months  after  the  notice ;  that  by  this 
notice,  and  the  expiration  of  time,  the  tenancy  was  terminated  and  the 
lease  expired ;  and  that  afterwards  they  refused  to  deliver  the  posses- 
sion to  him.  The  defendants,  by  their  counter  affidavit,  averred  that 
their  lease  or  term  of  rent  from  plaintiff  had  not  expired.  The  jury 
found  for  defendants,  and  plaintift''s  motion  for  a  new  trial  was  over- 
ruled, to  which  he  excepted.  In  addition  to  the  general  grounds  of  the 
motion  that  the  verdict  was  contrary  to  law,  evidence,  etc.,  it  was  al- 
leged therein :  The  court  erred  in  admitting  parol  evidence  to  es- 
tablish a  verbal  contract  on  the  part  of  plaintiff  to  erect  a  building 
of  specific  character  and  dimensions,  not  set  out  in  the  written  contract 
between  the  parties,  without  any  allegation  in  the  pleadings  that  said 

9  It  is  e.stablished  by  a  great  weight  of  autliority  that  a  tenant  under  a 
lease  for  a  year  or  juore  may  be  treated  as  a  tenant  from  year  to  year  if  he 
holds  over  his  term  without  any  new  agreement  with  his  landlord.  Bolding  v. 
Texas  Produce  Co.,  61  Ark.  377,  33  S.  W.  421  (1895);  Koberson  v.  Simons,  109 
Ga.  360,  34  S.  E.  604  (1899);  Streit  v.  Fay,  230  111.  319,  82  N.  E.  648,  120  Am. 
St.  Kep.  304  (1907);  Pyle  v.  Tel.  Co.,  85  Kan.  24,  116  Pac.  229  (1911);  Kuhl- 
man  v.  Brewing  Co.,  87  Neb.  72,  126  N.  W.  1083,  29  L.  R.  A.  (N.  S.)  174  (1910); 
Whalen  v.  Manley,  68  W.  Va.  328,  69  S.  E.  843  (1910).  The  landlord  may,  how- 
ever, at  his  election,  treat  such  a  holding-over  tenant  as  a  trespasser.  Long  v. 
Grant,  163  Ala.  507,  50  South.  914,  136  Am.  St.  Rep.  86  (1909);  Hallett  v. 
Barnett,  51  Colo.  434,  118  Pac.  972  (1911) ;  Eppstein  v.  Kuhn,  225  111.  115,  SO 
N.  E.  80,  10  L.  R.  A.  (N.  S.)  117  (1906);  Kennedy  v.  N.  Y.,  196  N.  Y.  19,  89  N. 
E.  .360,  25  L.  R.  A.  (N.  S.)  847  (1909)  ;  Providence  County  Savings  B.uik  v. 
Hall,  16  R.  I.  154,  13  Atl.  122  (1888).  In  some  jurisdictions,  however,  it  is 
beld  that  a  tenant  who  holds  over  after  the  expiration  of  his  term,  provid- 
ing such  a  holding  is  assented  to  by  the  landlord,  becomes  a  tenant  at  will. 
Hall  v.  Henninger,  145  Iowa,  230,  121  N.  W.  6,  139  Am.  St.  Rep.  412  (1909); 
Benfey  v.  Congdon,  40  Mich.  283  (1879)  ;  Leggett  v.  Exposition  Co.,  157  Mo. 
App.  108.  137  S.  W.  893  (1911).  A  tenant  who  holds  over  after  his  term  with- 
out the  consent  of  his  landlord  is,  by  way  of  distinction,  a  tenant  by  suffer- 
ance.   Benton  v.  Williams,  202  Mass.  1S9,  88  N.  E.  843  (1909). 


TENANCIES    AT    WILL — CREATION  151 

particulars  were  intended  to  be  included  in  the  contract,  and  were 
omitted  by  either  fraud,  accident,  or  mistake,  plaintiff  objecting  to  the 
introduction  of  this  parol  testimony  on  the  grounds  that  it  was  irrele- 
vant; that  it  was  not  covered  or  suggested  by  any  pleadings  filed  in 
the  case;  that  it  was  an  attempt  to  add  and  to  vary  a  written  contract 
by  parol ;  that  it  set  up  an  agreement  concerning  land  which  the  stat- 
ute required  to  be  in  writing;  and  that  it  presented  issues  involved  in  a 
suit  between  the  parties  pending  in  the  superior  court  of  Chatham 
county.    (The  case  was  tried  in  the  city  court  of  Savannah.) 

Also  that  the  court  erred  in  refusing  to  charge  the  following  written 
requests  by  the  plaintiff:  "The  written  contract  between  the  parties 
reads  as  follows :  'Savannah,  Georgia,  4th  June,  1889.  I  am  to  erect 
a  four-story  building  sixty  feet  or  more  front,  and  Messrs.  Lindsay  & 
Morgan  agree  to  pay  me  four  thousand  dollars  per  annum  net,  if  the 
cost  of  the  building  at  six  per  cent.,  with  a  valuation  of  forty  thousand 
dollars  for  the  lot,  viz.,  lot  number  one,  Eyled  tything,  Heathcote  ward, 
does  not  exceed  that  amount.  If  it  does,  then  Lindsay  &  Morgan  are 
to  pay  Joseph  D.  Weed  six  per  cent,  on  the  cost,  including  above  valu- 
ation of  lot.  Lindsay  &  Morgan  are  to  pay  all  taxes,  keep  the  building 
in  repair,  and  keep  building  insured  for  its  cost.  Upon  these  condi- 
tions Joseph  D.  Weed  agrees  to  give  them  a  lease  for  ten  years  from 
the  date  the  building  is  ready  for  occupation.  [Signed]  Joseph  D. 
Weed.  [Signed]  Lindsay  &  Morgan.'  I  charge  you  that  the  contract 
I  have  read  was  not  a  present  demise  or  lease  which  granted  to  Lind- 
say &  Morgan  an  immediate  estate  for  years  out  of  the  estate  of  Jos- 
eph D.  Weed,  (Code,  §  2278 ;)  but  was  a  contract  to  give  them  a  future 
lease  for  ten  years  from  the  date  when  the  building  to  be  constructed 
was  ready  for  occupation.  If  you  find  from  the  evidence  that  on  June 
4,  1889,  a  contract  in  writing  was  made  between  the  parties  to  this  suit, 
by  which  the  said  Joseph  D.  Weed  agreed,  upon  the  terms  and  condi- 
tions therein  stated,  to  give  to  the  said  Lindsay  &  Morgan  a  lease  of 
the  premises  described  for  ten  years  from  the  date  when  the  building 
was  ready  for  occupation ;  and  further  find  that,  before  the  said  build- 
ing was  completed  and  ready  for  occupation,  the  said  Lindsay  &  Mor- 
gan, by  an  arrangement  made  with  the  contractor  who  was  erecting  the 
building,  and  with  the  consent  of  the  said  Joseph  D.  Weed,  began  to 
store  their  goods  therein,  and  to  occupy  the  same  in  part  before  its 
completion ;  and  further  find  that  after  the  said  building  was  complet- 
ed, in  November  thereafter,  the  said  Joseph  D.  Weed  tendered  to  the 
said  Lindsay  &  Morgan,  then  in  the  occupation  of  said  building,  a 
written  lease  of  the  same  for  ten  years,  and  that  said  Lindsay  &  Mor- 
gan objected  to  the  said  lease,  and  refused  to  sign  or  execute  the  same ; 
and  that  no  lease  has  ever  been  made  or  given  to  the  said  Lindsay  & 
Morgan  for  said  building,  other  than  the  assent  of  the  said  Joseph 
D.  Weed  to  their  occupation  of  said  building  before  completion  under 
an  agreement  to  give  them  a  ten-years  lease  when  said  building  was 
ready  for  occupation;    and  that  no  rent  has  ever  been  paid  by  the 


152  ESTATES    LESS    THAN    FREEHOLD 

said  Lindsay  &  Morgan  or  received  by  the- said  Joseph  D.  Weed, — then 
I  charge  you  that  the  occupation  of  said  building  by  said  Lindsay  & 
Morgan  was  a  tenancy  at  will,  and  that  they  became  tenants  at  will 
to  said  Joseph  D.  Weed.  I  further  charge  you  that,  under  the  Code  of 
Georgia,  two  months'  notice  is  necessary  from  the  landlord  to  termi- 
nate a  tenancy  at  will.  Code,  §  2291.  If  you  find  that  on  the  8th  day 
of  April,  1890,  the  said  Joseph  D.  Weed  gave  notice  to  the  said  Lind- 
say &  Morgan  that  he  desired  to  terminate  said  tenancy,  and  to  quit 
the  occupancy  and  possession  of  said  property  after  the  expiration  of 
two  months  thereafter,  to  wit,  on  June  13,  1890,  and  that  on  said  June 
13,  1890,  demand  was  made  for  said  premises  by  the  said  Joseph  D. 
Weed,  and  was  refused  by  said  Lindsay  &  Morgan,  then  I  charge  you 
that  said  notice  terminated  said  tenancy ;  that  the  said  Joseph  D.  Weed 
became  thereafter  entitled  to  the  possession  of  his  said  property ;  and 
that  your  verdict  must  be  for  the  plaintiff." 

Also  that  the  court  erred  in  charging :  "If  Mr.  Weed  understood  the 
contract  in  one  particular  way,  and  Messrs.  Lindsay  &  Morgan  under- 
stood it  in  another  particular  way ;  if  Mr.  Weed  knew  the  way  Lind- 
say &  Morgan  understood  it,  and  did  not  correct  it, — then  that  would  be 
the  contract  that  would  be  binding ;"  the  said  charge  being  obscure  in 
not  making  it  clear  to  the  jury  whose  understanding  would  be  binding, 
and  there  being  no  evidence  to  show  that  Mr.  Weed  understood  the 
said  contract  in  the  particular  way  that  Messrs.  Lindsay  &  Morgan  un- 
derstood it.  "The  contract  in  writing  is  an  exceedingly  meager  one, 
and  is  therefore  necessarily  to  be  explained  by  oral  testimony.  The 
contract  is  this  as  it  is  written  :  'Savannah,  Ga.,  June  4,  1889.  I,' — and 
you  will  notice  that  it  is  signed  by  Joseph  D.  Weed  and  by  Lindsay  & 
Morgan.  That  first  word  is  an  ambiguity,  it  being  perfectly  apparent 
on  the  face  of  said  contract  that  'V  referred  to  said  Joseph  D.  Weed, 
and  there  being  no  ambiguity  as  to  the  party  intended  thereby.  It  is 
for  me  to  say  to  you  what  this  written  instrument  means,  and  to  say 
whether  or  not  it  is  complete,  and  whether  or  not  oral  testimony  should 
come  in ;  and  having  declared  that  this  is  an  incomplete  and  unintelli- 
gible contract  as  it  stands,  without  explanation ;  that  there  is  an  open 
patent  ambiguity  in  it  which  may  be  interpreted  two  or  three  or  more 
different  ways ;  and  that  there  are,  from  the  circumstances  surround- 
ing it,  other  ambiguities, — I  have  allowed  oral  testimony  to  explain  it. 
This  paper  is  not  a  lease,  and  yet  they  (meaning  Lindsay  &  Morgan) 
may  hold  under  it,  and  it  may  act  as  if  it  were  a  lease;  it  may  be  as 
binding  as  a  lease;  it  may  take  the  place  of  a  lease  under  some  cir- 
cumstances. The  view  which  I  hold  of  this  contract  is  this :  The  par- 
ties entered  into  or  upon  these  premises  under  an  agreement  for  a 
lease.  If  the  agreement  had  never  been  carried  out  to  make  a  lease,  if 
the  parties  had  occupied  the  building,  and  the  building  was  such  as 
they  had  the  right  to  expect,  and  if  they  paid  up  the  rent,  and  Mr. 
Weed  had  accepted  the  rent,  and  a  lease  had  never  been  made,  then 
this  paper  would  have  stood  in  the  place  of  a  lease.    They  would  have 


TENANCIES   AT   WILL — CEEATION  153 

• 

been  tenants  for  the  length  of  time  mentioned  in  this  paper,  and  they 
would  have  had  this  paper  as  by  its  terms  to  govern  the  holding  which 
they  had.  If,  however,  they  failed  to  pay  the  rent  which  was  reserved 
to  be  paid  in  this  paper,  and  failed  to  pay  it  for  a  reason  which  you 
find  to  be  a  good  and  valid  reason ;  if  you  find  that  the  amount  of  four 
thousand  dollars  a  year  was  not  a  proper  amount  for  them  to  pay  be- 
cause of  the  failure,  on  the  part  of  Mr.  Weed,  to  furnish  them  with 
such  a  building  as  they  had  under  the  circumstances  the  right  to  expect, 
— then  you  must  also  find  that  they  had,  and  I  so  charge  you,  the  right 
to  refuse  to  pay  the  entire  amount  of  the  rent,  and  to  leave  it  to  the 
courts  to  determine,  if  the  parties  could  not  agree  as  to  what  amount  of 
rent  should  be  paid,  without  their  becoming  tenants  at  will  and  liable  to 
ejectment.  The  law,  gentlemen,  seeks  to  be  just.  It  tries  to  be  just 
as  fair  as  it  can  be,  and  there  are  oftentimes  cases  where  the  law  is 
not  just  if  it  be  strictly  construed;  therefore  our  laws  have  said,  our 
Code  has  said,  or  the  legislature,  speaking  through  the  Code,  has  said, 
that  wherever  there  is  a  right  there  shall  be  a  remedy  to  enforce  it, 
and,  if  the  legislature  has  provided  no  remedy,  the  court  shall  make  a 
remedy  for  it.  Therefore  if  I  thought  that  under  the  strict  meaning 
or  interpretation  of  the  laws  these  gentlemen  were  tenants  at  will,  it 
would  be  my  duty,  if  I  believed  that  they  had  rights  which  that  con- 
struction would  take  away  from  them,  to  devise  a  means  by  which 
their  right  should  be  protected.  If  they  held  the  building  and  refused 
to  pay  the  rent,  being  unjustified  in  so  refusing,  they  are  tenants  at 
will,  and  you  must  by  your  verdict  find  for  the  plaintiff.  If,  on  the 
other  hand,  they  acted  upon  their  right  to  occupy  the  building,  or  to 
not  occupy  it ;  if  they  were  in  the  right  in  refusing  to  pay  because  the 
rent  was  not  due,  or  because  the  amount  of  rent  which  was  claimed 
was  not  due,  and  they  withheld  it  because  the  building  was  necessary 
to  them,  and  because  it  was  not  reasonably  suited  to  their  purposes,  re- 
fused to  pay  the  entire  amount  of  rent  demanded, — if  you  find  these 
to  be  facts,  then  it  will  be  your  duty  to  find  for  the  defendants.  A  ten- 
ant at  will  is  one  who  enters  into  the  possession  of  the  lands  or  tene- 
ments of  another  lawfully,  but  for  no  definite  term,  and  whose  posses- 
sion is  subject  to  the  determination  of  the  landlord  at  any  time  he  sees 
fit  to  put  an  end  to  it  by  giving  two  months'  notice  to  quit,  which  our 
statute  requires," — the  said  charge  presenting  only  a  partial  view  to 
the  jury,  and  failing  to  inform  them  of  the  reciprocal  right  of  the  ten- 
ant to  terminate  the  tenancy  at  his  will.  "If  you  find  from  the  testi- 
mony that  Lindsay  &  Morgan  had  an  agreement  with  Mr.  Weed 
whereby  they  were  to  get  a  lease  of  ten  years  to  the  premises  in  ques- 
tion from  the  date  of  the  completion  of  the  building,  and  if  you  further 
find  from  the  evidence  that  Lindsay  &  Morgan  have  performed,  or 
have  proffered  to  perform,  all  their  obligations  under  this  agreement, 
and  that  they  are  still  entitled  to  said  ten  years'  lease  of  said  premises, 
then  they  are  not  tenants  at  will,  and  your  verdict  should  be  for  Lind- 
say &  Morgan.    If  you  find  from  the  testimony  that  Mr.  Weed  agreed 


154  ESTATES    LESS    THAN    FREEHOLD 

to  erect  for  Lindsay  &  Morgan  a  certain  kind  of  building,  and  that  he 
did  not  comply  with  his  contract,  but  erected  one  that  was  inferior  to 
the  building  he  contracted  to  furnish  and  less  valuable,  then  Lindsay  & 
Morgan  would  have  the  right  to  have  the  rent,  which  they  agreed  to 
pay,  reduced  by  such  an  amount  as  would  compensate  them  for  the 
damages  which  they  sustained  by  reason  of  Mr.  Weed's  violation  of 
his  contract,  provided,  of  course,  Lindsay  &  Morgan  make  it  appear  to 
your'  satisfaction  that  they  have  sustained  such  damages.  If,  there- 
fore, the  testimony  shows  that  Mr.  Weed  thus  violated  his  contract, 
and  if  no  lease  was  tendered  to  Lindsay  &  Morgan  until  after  the  build- 
ing was  completed,  then  they  were  not  under  any  obligation  to  sign  a 
lease  providing  for  the  four  thousand  dollars'  net  rent,  but  were  enti- 
tled to  a  lease  at  such  a  reduced  rent  as  would  compensate  them,  or 
measure  the  difference  in  the  rental  value  between  the  building  which 
Mr.  Weed  contracted  to  furnish  and  the  building  which  they  actually 
got.  If  you  find  from  the  testimony  that  a  lease  was  tendered  by  Mr. 
Weed  to  Lindsay  &  Morgan  after  the  completion  of  the  building",  and 
with  the  rental  of  four  thousand  dollars'  net  provided  therein,  and  if 
you  further  find  from  the  testimony  that  Lindsay  &  Morgan  were  not 
liable  for  this  amount  of  rent,  but  were  entitled  to  an  abatement  of  it, 
and  if  you  further  find  from  the  testimony  that  Mr.  Weed  was  unwill- 
ing to  give  a  lease  for  any  less  rent  and  that  Lindsay  &  Morgan  right- 
fully and  properly  refused  to  sign  the  lease,  then  said  refusal  on  their 
part  did  not  forfeit  their  rights  under  their  contract,  and  did  not  make 
them  tenants  at  will.  If  you  find  from  the  testimony  that  Lindsay  & 
Morgan  have  performed,  or  have  been  ready  and  willing  and  oft'ering 
to  perform,  all  their  obligations  under  their  contract  with  Mr.  Weed, 
and  that  they  are  entitled  to  a  lease  of  the  premises  for  the  term  of  ten 
years  from  the  completion  of  the  building,  then  it  is  not  necessary  for 
them  to  quit  the  possession  of  said  premises  until  the  courts  can  de- 
cree the  specific  performance  of  the  contract ;  but  they  have  the  right 
to  remain  in  possession,  and  cannot  be  dispossessed  as  tenants  at  will." 
Also  that  the  charge  did  not  correctly  set  forth  the  legal  relations 
existing  between  landlord  and  tenant,  was  calculated  to  mislead  the 
jury,  and  was  contrary  to  law.  In  his  order  overruling  the  motion 
the  judge  below  stated  that,  as  to  the  exceptions  made  to  the  charge, 
reference  was  made  to  the  charge  which  was  filed  as  a  part  of  the  rec- 
ord       *       *       *  10 

Bleckley,  C.  J.  The  contract  of  June  4,  1889,  signed  by  the  par- 
ties, respectively,  a  copy  of  which  is  in  the  report,  was  not  a  present 
demise  or  lease  which  granted  to  Lindsay  &  Morgan  an  immediate  es- 
tate for  years,  but  was  an  agreement  to  give  them  a  future  lease  for 
ten  years  from  the  time  the  building  to  be  erected  was  "ready  for  occu- 
pation." It  is  plain  from  the  nature  of  the  agreement  and  the  language 
of  the  instrument  that  the  contract  was  executory  on  both  sides.     It 

10  Part  of  the  statement  of  facts  Is  omitted. 


TENANCIES    AT   WILL — CREATION  155 

was  not  contemplated  that  Lindsay  &  Morgan  should  become  tenants 
to  Weed,  or  owners  of  any  interest  in  the  premises,  or  that  they  should 
be  liable  for  the  payment  of  the  stipulated  rent,  if  Weed  did  not  erect 
the  building  and  make  it  ready  for  occupation.  Until  that  time  should 
arrive  they  were  to  remain  without  any  interest  in  the  property  what- 
ever. If  the  building,  as  they  contend,  has  not  yet  been  completed  and 
made  ready  for  occupation  according  to  the  agreement,  the  time  ap- 
pointed for  an  interest  to  vest  in  them  as  lessees,  and  for  their  occupa- 
tion to  commence,  has  not  yet  arrived ;  and  so  they  are  without  any 
legal  ownership  of  an  estate  for  years,  or  of  a  right  to  possession  by 
virtue  of  such  ownership.  The  instrument  executed  as  evidence  of  the 
contract  contains  no  words  of  present  demise  or  any  equivalent  terms, 
nor  does  it  fix  with  certainty  either  the  amount  of  the  annual  rent  to 
be  paid,  or  appoint  any  time  for  the  completion  of  the  building  and  the 
consequent  commencement  of  the  10  years'  term.  The  amount  of  the 
rent  was  to,  or  might,  depend  in  part  upon  the  cost  of  the  building,  and 
when  the  building  would  be  ready  for  occupation  would  necessarily  de- 
pend on  contingencies  to  be  met  and  dealt  with  after  the  agreement  was 
signed.  It  is  manifest  that  the  words,  "Upon  these  conditions,  Joseph 
D.  Weed  agrees  to  give  them  a  lease  for  ten  years  from  the  date  the 
building  is  ready  for  occupation,"  ought  to  be  construed,  not  as  a  stip- 
ulation for  further  assurance,  but  as  an  undertaking  to  create  a  lease 
not  previously  existing,  and  to  pass  by  it  an  estate  not  before  conveyed 
nor  attempted  to  be  conveyed.  It  could  not  have  been  the  intention  of 
the  parties  either  that  Lindsay  &  Morgan  should  be  owners  of  the  con- 
templated terms  of  years,  or  any  term  in  the  premises,  before  the  an- 
nual rent  which  they  were  to  pay  began  to  accrue,  or  that  this  rent  was 
to  begin  to  accrue  before  the  building  was  ready  for  occupation.  In. 
distinguishing  between  a  lease  and  a  mere  executory  agreement  for  a 
lease,  the  intention  of  the  parties,  as  manifested  by  the  writing,  is  a  con- 
trolling element.  Lloyd,  Bldg.  Cont.  §  88  ;  12  Amer.  &  Eng.  Enc.  Law, 
'^0;~TWood,  Landl.  &  Ten.  §  179;  McAdam,  Landl.  &  Ten.  §  41 ;  1 
Tayl.  Landl.  &  Ten.  §  37  et  seq. ;  6  Lawson,  Rights,  Rem.  &  Pr.  § 
2801.  For  cases  illustrating  the  distinction,  see  Sturgion  v.  Painter, 
Noy,  128;  Jackson  v.  Ashburner,  5  Term  R.  163;  Hegan  v.  Johnson,  2 
Taunt.  148 ;  Jackson  v.  Delacroix,  2  Wend.  (N.  Y.)  433 ;  People  v. 
Kelsey,  38  Barb.  (N.  Y.)  269;  Id.,  14  Abb.  Prac.  (N.  Y.)  372;  Mc- 
Grath  v.  City  of  Boston,  103  Mass.  369 ;  Adams  v.  Hagger,  4  Q.  B 
Div.  480 ;  Jackson  v.  Kisselbrack,  10  Johns.  (N.  Y.)  336,  6  Am.  Dec. 
341 ;  Kahley  v.  Gaslight  Co.,  102  Mass.  392. 

No  lease  creating  a  term  of  10  years,  and  vesting  the  same  in  Lind- 
say &  Morgan,  having  ever  come  into  existence  as  contemplated  by  the 
agreement,  what  was  the  effect  of  admitting  them  into  possession  by 
virtue  of  the  consent  given  by  Weed  in  his  letter  to  them  of  September 
27,  1889,  in  which  he  says:  "Usimply  write  to  tell  you,  as  Mr.  Brown 
told  me  you  wished  to  begin  to  occupy  the  building  before  it  was  en- 
tirely finished,  that  the  rent  will  begin  from  the  time  you  begin  to  oc- 


156  ESTATES    LESS    TUAN    FREEHOLD 

cupy  it.  I  have  no  objection  whatever  to  your  moving  into  the  building 
"as^oon  as  you  find  it  can  serve  your  convenience  to  do  so."  (Mr. 
Brown  was  the  contractor  employed  by  Weed  to  construct  the  build- 
ing.) Was  this  permission  a  license  to  occupy  for  10  years  without  the 
execution  of  any  lease,  or  was  it,  as  events  turned  out,  (possession  hav- 
ing been  taken  under  it,  and  Lindsay  &  Morgan  having  afterwards 
refused  to  join  in  the  execution  of  a  lease,)  t)ie-Creation  of  atenancy 
at  will?  We  think  it  was  the  latter,  and,  no  rent  having  at  any  time 
been  paid  and  accepted,  this  is  in  accordance  with  the  current  of  au- 
thority. 1  Tayl.  Landl.  &  Ten.  §  60;  1  Washb.  Real  Prop.  p.  376; 
Tied.  Real  Prop.  §  216;  6  Lawson,  Right,  Rem.  &  Pr.- §  2809;  12 
Amer.  &  Eng.  Enc.  Law,  670 ;  Chapman  v.  Towner,  6  Mees.  &  W.  100 ; 
Anderson  v.  Railway  Co.,  3  El.  &  El.  614;  Anderson  v.  Prindle,  23 
Wend.  (N.  Y.)  616;  Dunne  v.  Trustees,  39  111.  578.  In  Hamerton  v. 
Stead,  3  Barn.  &  C.  483,  Littledale,  J.,  said:  "Where  parties  enter 
under  a  mere  agreement  for  a  future  lease,  they  are  tenants  at  will ; 
and,  if  rent  is  paid  under  the  agreement,  they  become  tenants  from 
year  to  year,  determinable  on  the  execution  of  the  lease  contracted 
for,  that  being  the  primary  contract."  Perhaps,  as  the  law  of  remedy 
in  the  superior  court  now  stands,  the  payment  of  rent  would  have 
raised,  not  merel}'  a  tenancy  from  year  to  year,  but  one  for  the  whole 
term  covered  by  the  lease.    Walsh  v.  Lonsdale,  21  Ch.  Div.  9. 

It  is  plain  that,  consistently  with  the  written  agreement  of  the  par- 
ties, Lindsay  &  Morgan  would  have  no  right  to  occupy  and  use  the 
premises  for  10  years  unless  they  were  willing  to  pay  therefor  the  stip- 
ulated rent,  nor  unless  they  were  willing  to  occupy  as  lessees,  and  not 
merely  as  tenants  at  will.  In  this  litigation  they  seek,  as  they  did  in 
some  of  the  preliminary  steps  which  led  to  it,  to  take  the  position,  and 
have  all  the  rights  of  lessees  on  terms  different  from  any  which  Weed 
has  ever  assented  to ;  that  is,  they  want  to  hold  at  a  less  annual  rent 
than  they  have  agreed  to  pay.  They  make  this  claim  because,  as  they 
contend.  Weed  has  not  erected  and  made  ready  for  occupation  such  a 
building  with  respect  to  plan  and  finish  as  was  contemplated.  If  this 
contention  be  well  founded  in  fact,  the  result  will  be,  not  that  they 
could  occupy  for  10  years  on  terms  diflferent  from  those  agreed  upon, 
but  that  they  could,  if  they  did  not  choose  to  waive  their  objection  and 
unite  in  the  lease  and  pay  the  stipulated  rent,  exercise  their  option  be- 
tween vacating  the  premises,  and  compelling,  by  a  proper  equitable  ac- 
tion, a  specific  performance  on  the  part  of  Weed  of  his  undertaking. 
Weed's  violation  of  his  contract  would  also  furnish  a  cause  of  action  in 
their  favor  for  any  damages  resulting  from  his  failure  to  comply. 
Perhaps  if  they  had,  under  protest,  paid  rent  according  to  the  contract, 
."they  might  have  done  so  without  surrendering  any  substantial  right, 
legal  or  equitable.  Lamare  v.  Dixon,  L.  R.  6  H.  L.  514.  When  this 
proceeding  was  commenced,  they  had  not  pursued  any  course  open  to 
them,  but  had  endeavored  to  pursue  one  not  open;  they  had  declined 
to  join  in  the  lease ;  had  not  paid  rent  at  the  stipulated  rate ;  had  en^ 


TENANCIES   AT   WILL — CREATION  157 

tered'no  suit  for  specific  performance;  and  had  refused  to  vacate  the 
premises.  Having  brought  themselves  into  the  position  of  mere  ten- 
arits  at  will,  section  2291  of  the  Code  applies  to  them.  The  two-months 
notice  having  been  given,  they  were  subject  to  eviction  as  tenants  hold- 
ing over.    Code,  §§  4077^081. 

The  pleadings  in  the  case  were  simply  the  affidavit  and  counter  affi- 
davit provided  for  by  the  sections  of  the  Code  last  cited.  The  pending 
application  in  the  superior  court  to  enjoin  the  prosecution  of  this  pro- 
ceeding was  not  operative,  because  no  injunction,  temporary  or  perma- 
nent, had  been  ordered,  nor  any  restraining  order  granted.  What  we 
have  ruled  embraces  all  that  is  fundamental  in  the  case,  and  effectually 
controls  the  final  result  of  this  proceeding  in  the  city  court. 

The  court  erred  in  not  granting  a  new  trial.    Judgment  reversed. 


TALAMO  V.  SPITZMILLER. 

(Court  of  Appeals  of  New  York,  Second  Division,  1890.    120  N.  T.  37,  23  N.  E, 
980,  8  L.  R.  A.  221,  17  Am.  St.  Rep.  607.) 

Appeal  from  superior  court  of  Buffalo,  general  term. 

BradlKy,  J.  The  action  was  brought  to_jecpver  the  proceeds  of  the 
sa^le.  made  by  the  defendant  of  the  plaintiff's  goods.  The  defendant 
^dmits  his  liability  to  account  to  the  plaintiff  for  the  proceeds  of  such 
sale,  and  alleges  several  matters  by  way  of  counter-claim,  which  will 
be  referred  to  so  far  as  is  essential  to  the  determination  of  the  ques- 
tions presented  for  consideration  on  this  review.  The  trial  court 
found  that  on  March  13,  1882,  by  an  agreement  of  lease  in  writing 
under  seal  made  by  Catharine  Dickman  and  defendant,  she  leased  to 
him  a  dwelling-house  for  the  term  of  five  years  from  May  1,  1882,  at 
the  annual  rent  of  $450  for  the  first  year,  and  $500  for  each  subse- 
quent year,  payable  in  equal  monthly  installments  in  advance,  Avhicli 
the  defendant  undertook  to  pay;  that  the  defendant  took  such  lease 
atJhe  verbal  instance  and  request  of  the  plaintiff,  and  upon  the  un- 
written understanding  and  agreement  that  they  should  jointly  use  and 
occupy  the  dwelling-house  during  the  term  mentioned  in  the  lease, 
and  that  the  plaintiff  should  pay  to  the  defendant  half  the  rent; 
that  the  defendant  and  the  plaintiff  went  into  the  possession  of  the 
house  in  May,  1882,  and  jointly  occupied  it  until  in  November  fol- 
lowing, when  the  plaintiff  quit  the  house,  and  has  not  since  then  oc- 
cupied any  portion  of  it;_  that  the  defendant  has  paid  the  monthly 
installments  of  rent  .as  they  fell  due,  and  that  the  plaintiff  has  paid 
nothing  to  the  defendant  on  account  of  the  rent.  The  court  allowed 
to  the  defendant,  against  the  plaintiff,  a  sum  equal'to  one-half  the 
rent  for  the  period  of  the  joint  occupancy, — six  and  a  half  months. 
And  upon  the  exception  to  the  conclusion  of  the  court  that  the  plain- 
tiff was  entitled  to  recover  the  amount  for  which  judgment  was  di- 
rected, arises  the  question  whether  the  defendant  was  entitled  to  the 


158  ESTATES    LESS    THAN    FREEHOLD 

allowance  of  a  greater  amount  against  the  plaintiff  than  that  given 
by  the  court  on  account  of  the  rent. 

The  contention  of  the  defendant's  counsel  is:  (1)  That  the  plaintiff 
became  liable  to  pay  the  defendant,  one-half  the  rent  which  the  latter 
undertook  by  the  lease  to  pay  as  the  installments  should  become  due; 
(2)  that,  if  not  so,  the  plaintiff  became  a  yearly  tenant,  and  was  li- 
able to  the  defendant  for  one-half  the  amount  of  the  rent  for  one 
year.  The  plaintiff',  not  being  a  party  to  the  lease,  assumed  no  legal 
obligation  to  pay  rent  for  the  term,  as  a  lease  for  more  than  one  year, 
not  in  writing,  was  void.  2  Rev.  St.  135,  §§  6,  8.  The  agreement 
between  the  parties,  and  under  which  the  plaintiff*  entered  into  joint 
occupancy  with  the  defendant,  being  void,  gave  to  the  plaintiff  no 
right,  and  imposed  upon  the  defendant  no  obligation,  to  permit  him 
to  go  into  or  remain  in  possession  of  any  portion  of  the  house,  and 
unless  he  became  a  yearly  tenant  his  liability  was  for  use  and  occupa- 
tion for  the  time  only  which  he  occupied.  Thomas  v.  Nelson,  69  N. 
Y.  118.  The  mere  fact  that  a  person  goes  into  possession  under  a 
lease,  void  because  for  a  longer  term  than  one  year,  does  not  create  a 
3^early  tenancy.  If  he  remains  in  possession  with  the  consent  of  the 
landlord  for  more  than  one  year,  under  circumstances  permitting  the 
inference  of  his  tenancy  from  year  to  year,  the  latter  could  treat  him 
as  such,  and  the  tenant  could  not  relieve  himself  from  liability  for 
rent  up  to  the  end  of  the  current  year;  and  the  terms  of  the  lease, 
void  as  to  duration  of  term,  would  control  in  respect  to  the  rent. 
Coudert  v.  Cohn,  118  N.  Y.  309,  23  N.  E.  298,  7  L.  R.  A.  69,  16  Am. 
St.  Rep.  761.  The  parol  agreement  for  five  years  was  not  effectual 
to  create  a  tenancy  for  one  year.  Nor  did  the  mere  fact  that  the 
plaintiff  went  into  possession  have  that  effect.  He  remained  in  occu- 
pation a  part  of  one  year  only,  and  the  creation  of  a  tenancy  for  a 
year  was  dependent  upon  something  further.  While  it  is  not  requir- 
ed that  a  new  contract  be  made  in  express  terms,  there  must  be  some- 
thing from  which  it  may  be  inferred, — something  which  tends  to  show 
that  it  is  within  the  intention  of  the  parties.  The  payment  and  receipt 
of  an  installment  or  aliquot  part  of  the  annual  rent  is  evidence  of  such 
understanding,  and  goes  in  support  of  a  yearly  tenancy,  and,  without 
explanation  to  the  contrary,  it  is  controlling  evidence  for  that  purpose. 
Cox  V.  Bent,  5  Bin?.  185;  Bishop  v.  Howard,  2  Barn.  &  C.  100; 
Braythwayte  v.  Hitchcock,  10  Mees.  &  W.  494;  Mann  v.  Lovejov, 
Ryan  &  M.  355;  Thomas  v.  Packer,  1  Hurl.  &  N.  672;  Doe  v.  Crago, 
6  C.  B.  90. 

While  there  may  appear  to  have  been  some  confusion  in  the  cases 
in  this  state,  upon  the  subject,  this  doctrine  has  been  more  recently 
recognized.  Reeder  v.  Sayre,  70  N.  Y.  184,  26  Am.  Rep.  567;  Laugh- 
ran  V.  Smith,  75  N.  Y.  209.  In  the  cases  last  cited  the  tenants  had 
been  in  possession  more  than  a  year  when  the  question  arose,  but, 
having  gone  into  occupancy  under  an  invalid  lease,  their  yearly  ten- 
ancy was  held  dependent  upon  a  new  contract,  which  might  be  implied 


TENANCIES   AT   WILL — CREATION  159 

from  the  payment  and  acceptance  of  rent,  and,  when  once  created, 
could  be  terminated  by  neither  party,  without  the  consent  of  the 
other,  only  at  the  end  of  a  year.  The  contention,  therefore,  that  by 
force  of  the  original  agreement  between  the  parties,  aided  by  the  fact 
that  the  plaintiff  went  into  the  possession  with  the  consent  of  the  de- 
fendant, is  not  alone  sufficient  to  support  an  inference  of  the  new  con- 
tract requisite  to  create  a  yearly  tenancy.  The  plaintiff  paid  no  rent, 
nor  while  he  was  in  possession  was  any  request  of  or  promise  by  him 
made  to  pay  any.  He  simply  went  in  under  the  original  void  agree- 
ment, and  left  within  the  year.  There  was  no  evidence  to  require 
the  conclusion  of  the  trial  court  that  the  plaintiff  had  assumed  any  re- 
lation to  the  premises  which  charged  him  with  liability,  other  than  for 
use  and  occupation,  during  the  time  he  remained  in  possession. 

The  defendant's  counsel,  to  support  his  proposition  that  the  entry  by 
the  plaintiff  with  the  consent  of  the  defendant  made  him  a  yearly  ten- 
ant, cites  Craske  v.  Publishing  Co.,  17  Hun,  319,  where  it  was  remarked 
that  a  parol  lease  for  a  longer  term  than  one  year  "operated  so  as  to 
create  a  tenancy  from  year  to  year."  If  that  was  intended  by  the 
learned  justice  as  a  suggestion  that  such  a  void  lease  operated  as  a 
demise  for  one  year,  it  is  not  in  harmony  with  the  view  of  the  court 
in  Laughran  v.  Smith,  supra.  That  remark  in  the  Craske  Case  was 
not  essential  to  the  determination  there  made,  as  rent  was  in  fact  paid 
for  a  portion  of  the  term ;  nor  can  it  be  assumed  that  it  was  in- 
tended to  have  the  import  sought  to  be  given  to  it.  It  must  be  assum- 
ed, upon  authority  and  reason,  that  a  parol  lease  for  more  than  one 
year  is  ineffectual  to  vest  any  term  whatever  in  the  lessee  named,  and 
that  when  he  goes  into  possession  under  it,  with  the  consent  of  the 
lessor,  without  any  further  agreement,  he  is  a  tenant  at  will  merely, 
subject  to  liability  to  pay  at  the  rate  of  the  stipulated  rent  as  for  use 
and  occupation.  Barlow  v.  Wainwright,  22  Vt.  88,  52  Am.  Dec.  79. 
This  may  be  converted  into  a  yearly  tenancy  by  a  new  contract,  which 
may  be  implied  from  circumstances,  when  they  permit  it.  While  the 
mere  entry  with  consent  will  not  alone  justify  it,  a  promise  to  pay, 
and  a  purpose  manifested  to  accept,  a  portion  of  the  annual  rent  pro- 
vided for  by  the  agreement  may,  as  evidence,  go  in  support  of  such  a 
new  contract.  There  was  no  such  evidence  in  this  case.  The  promise 
of  the  plaintiff  to  pay  one-half  the  rent  was  made  preliminarily  to  his 
entry,  and  was  part  of  and  not  distinguishable  from  the  parol  agree- 
ment with  the  defendant  to  occupy  for  five  years,  and  pay  one-half 
the  rent  for  that  term.  There  does  not  seem  to  have  been  any  evi- 
dence to  require  the  conclusion  that  any  other  than  such  void  agree- 
ment was  made  between  the  parties,  or  that  the  plaintiff  becarne  other 
than  a  mere  tenant  at  will  of  the  defendant.  1  Woodf.  Landl.  &  Ten. 
(1st  Amer.  Ed.  from  13th  Eng.  Ed.)  221. 

The  other  cases  cited  by  the  defendant's  counsel  do  not  support  the 
proposition  asserted  by  him.  There  is  no  opportunity,  upon  the  facts 
found,  or  upon  any,  the  finding  of  which  the  evidence  requires,  to 


IGO  ESTATES    LESS    THAN    FREEHOLD 

hold  that  the  defendant  took  and  held  the  lease  as  trustee  for  the 
plaintiff  as  to  a  portion  of  the  demised  premises,  or  that  a  relation 
was  assumed  by  the  plaintiff  to  the  lease,  between  the  lessor  and  the 
defendant,  which  legally  charged  him  with  liability  to  the  latter  for 
moneys  paid  by  him  pursuant  to  it.  The  parol  agreement  between 
them  was  void  and  ineffectual  for  any  such  purpose. 
The  judgment  should  be  affirmed.    All  concur. 


II.  Tenancies  from  Year  to  Year  ^^ 
1.  Cre;ation 


See  Hunter  v.  Frost,  ante,  p.  146,  and  Talamo  v.  Spitzmiller,  ante, 
p.  157. 


2.  Termination 


See  Hunter  v.  Frost,  ante,  p.  146. 


III.  Tenancies  at  Sufferance  *' 


RUSSELL  V.  FABYAN. 

(Supreme  Judicial  Court,  New  Hampshire,  1856.  34  N.  H.  218.) 
This  is  an  action  on  the  case,  brought  July  2,  1853.  In  the  declara- 
tion it  was  alleged  in  substance  that  the  defendant  Fabyan,  having 
been  a  tenant  of  a  certain  hotel  in  Carroll  for  a  term  of  five  years, 
which  expired  on  the  20th  of  March,  1852,  the  defendants  wrongfully 
continued  to  occupy  the  same  after  the  said  lease  expired ;  and  so  neg- 
ligently and  carelessly  conducted  and  managed  certain  fires  by  them 
set  and  kept  in  said  hotel,  that  on  the  29th  of  April,  1853,  the  same 
was  burned  down  and  consumed.  The  defendants  pleaded  severally 
the  general  issue — not  guilty.' 

To  show  title  to  the  house  described  in  the  declaration,  the  plaintiff 
showed  that  the  land  on  which  it  stood,  together  with  a  part  of  the 
house,  were  in  possession  of  E.  A.  Crawford  on  December  12,  1837, 
and  for  many  years  before,  and  that  on  that  day  said  Crawford  con- 
veyed the  same  to  Nathaniel  Abbot,  who,  on  June  24,  1842,  conveyed 
the  same  to  Daniel  Burnham.     Said  Burnham,  on  the  20th  of  August, 

11  For  discussion  of  principles,  see  RurdicI^,  Real  Prop.  §§  SS-90. 

12  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  91-94. 


TENANCIES   AT   SUFFERANCE  161 

1844,  deeded  the  same  hotel  and  land  to  the  plaintiff.  The  plaintiff, 
on  January  28,  1847,  executed  a  lease  of  said  hotel  to  the  defendant 
Fabyan,  for  the  term  of  five  years  from  March  20,  1847,  who  held 
the  same  under  said  lease  until  he  accepted  a  lease  from  one  Dyer,  as 
hereinafter  mentioned.  On  the  19th  of  March,  1852,  an  agent  of  the 
plaintiff,  duly  authorized,  called  upon  said  Fabyan,  at  Conway,  where 
he  resided,  and  on  the  20th  of  March  called  upon  said  Fabyan's  serv- 
ant, who  had  charge  of  said  hotel,  at  said  hotel,  and  on  the  22d  of 
March  again  called  on  said  Fabyan,  at  Conway,  and  on  each  occasion 
demanded  that  possession  of  said  hotel  should  be  surrendered  to  the 
plaintiff,  which  was  refused — said  Fabyan  saying  that  he  had  taken 
a  lease  from  said  Dyer.  And  it  appeared  that  on  March  19,  1852, 
and  from  that  time  until  after  said  hotel  was  burned,  said  Fabyan 
held  possession  of  the  same  by  lease  from  said  Dyer,  who  had  also 
agreed  to  indemnify  him  against  any  suit  brought  against  him  by  said 
Russell  for  rents,  and  from  all  costs,  trouble  and  expense  of  any 
kind  which  might  happen  to  him  on  account  of  his  taking  said  lease. 
On  April  29,  1853,  said  hotel,  then  occupied  as  such,  took  fire  from 
some  one  of  the  stoves  or  fire-places  used  therein  for  cooking,  or  for 
warming  the  building,  or  from  sparks  from  the  same,  and  was  entirely 
consumed.     *     *     *  i3 

BsivL,  J.  Fabyan  entered  into  possession  of  the  premises  in  ques- 
tion under  a  written  lease,  to  continue  for  five  years  from  March  20, 
1847.  He  remained  in  possession  until  April  29,  1853,  when  the  build- 
ings were  burned  down,  more  than  a  year  after  the  lease  expired. 
During  the  interval  between  the  20th  of  March,  1852,  and  April  29, 
1853,  he  was  either  a  tenant  at  sufferance,  a  tenant  at  will,  or  a  dis- 
seizor. The  general  principle  is  that  a  tenant  who,  without  any  agree- 
ment, holds  over  after  his  term  has  expired,  is  a  tenant  at  sufferance. 
2"Bla.  Com.  150;  4  Kent,  Com.  .116;  Livingston  v.  Tanner,  ^12  Barb. 
(N.  Y.)  483.  No  act  of  the  tenant  alone  can  change  this  relation ;  but 
if  the  lessor,  or""owner  of  the  estate,  by  the  acceptance  of  rent,  or  by 
any  other  act  indicates  his  assent  to  the  continuance  of  the  tenancy, 
the  tenant  becomes  a  tenant  at  will,  upon  the  same  terms,  so  far  as 
they  are  applicable,  of  his  previous  lease.  Conway  v.  Starkweather,  1 
Denio  (N.  Y.)  113. 

In  this  case  there  is  no  evidence  to  justify  an  inference  of  assent 
hythe  lessor  to  any  continuance  of  the  tenancy,  but,  on  the  contrary, 
very  direct  and  conclusive  evidence,  in  the  demand  of  possession,  to  the 
contrary ;  while  the  reply  made  to  that  demand  by  Fabyan  negatives 
any  consent  on  his  part  to  remain  tenant  of  the  plaintiff.  There  was, 
then,  no  tenancy  in  fact  between  these  parties  at  the  time  of  the 
fire,  and  the  defendant  was  consequently  either  a  disseizor  or  a  tenant 
at  sufferance. 

13  Part  of  the  statement  of  facts  is  omitted. 
Bued.Cas.Real  Pbop. — 11 


162  ESTATES    LESS   THAN    FREEHOLD 

When  the  demand  of  possession  was  made  upon  Fabyan,  upon  the 
22d  of  March,  1852,  the  demand  was  refused,  Fabyan  saying  he  had 
taken  a  lease  of  the  property  from  Dyer.  The  previous  demands 
seem  to  have  been  premature,  and  before  the  expiration  of  the  lease, 
but  they  were  refused  upon  the  same  ground  as  the  last,  and  that 
refusal  might  constitute  a  waiver  of  any  objection  to  the  time  of  their 
being  made. 

Such  a  denial  of  the  right  of  the  lessor,  though  not  a  forfeiture  of 
a  lease  for  years,  is  sufificient  to  put  an  end  to  a  tenancy  at  will,  or  at 
sufferance,  if  the  lessor  elects  so  to  regard  it;  and  he  may,  if  he  so 
choose,  bring  his  action  against  the  tenant  as  a  disseizor,  without  entry 
or  notice,  and  may  maintain  against  him  any  action  of  tort,  as  if  he 
had  originally  entered  by  wrong.  De  Lanccy  v.  Ga  Nun,  12  Barb. 
(N.  Y.)  120. 

But  as  this  result  depends  on  the  lessor's  election,  and  nothing  ap- 
pears in  the  present  case  to  indicate  such  election,  the  tenant  must  be 
regarded  as  a  tenant  at  sufferance. 

To  ascertain  the  liability  of  a  tenant  at  suft'erance  for  the  loss  of 
buildings  by  fire,  it  becomes  material  to  inquire,  what  is  the  nature  of 
this  kind  of  tenancy ;  and  we  have  examined  the  books  accessible  to  us, 
to  trace  the  particulars  in  which  it  differs  from  the  case  of  a  party 
who  originally  enters  by  wrong.  * 

All  the  books  agree  that  he  retains  the  possession  as  a  wrongdoer, 
just  as  a  disseizor  acquires  and  retains  his  possession  by  wrong.  Den 
V.  Adams,  12  N.  J.  Law,  99;  2  Bla.  Com.  150;  4  Kent,  Com.  116.  By 
the  assent  of  the  parties  to  the  continuance  of  the  possession  thus 
wrongfully  obtained  or  retained,  the  wrong  is  purged,  and  the  occu- 
pant becomes  a  tenant  at  will  or  otherwise  to  the  owner.  10  Vin.  Ab. 
416,  Estate,  D,  C,  2. 

If  no  such  assent  appears,  the  tenant  is  entitled  to  no  notice  to  quit. 
Livingston  v.  Tanner,  12  Barb.  (N.  Y.)  483;  Jackson  v.  McLeod,  12 
Johns.  (N.  Y.)  182;  1  Cru.  Dig.  tit.  9,  §  10. 

The  owner  may  make  his  entry  at  once  upon  the  premises,  or  he  may 
commence  an  action  of  ejectment  or  real  action.  Livingston  v.  Tan- 
ner, 12  Barb.  (N.  Y.)  483;  Den  v.  Adams,  12  N.  J.  Law,  99.  And  it 
makes  no  difference  that  the  lessee,  after  his  term  has  expiredTTias 
taken  a  new  lease  for  years  of  a  stranger  rendering  rent,  which  has 
been  paid ;  for  he  still  remains  tenant  at  sufferance  as  to  the  first  les- 
sor, as  was  held  in  Preston  v.  Love,  Noy,  120;  10  Vin.  Ab.  416. 

"We  have  been  able  to  discover  but  one  point  of  difference  between 
the  case  of  the  disseizor  and  the  tenant  at  suft'erance,  which  is  th_at 
tiie  owner  cannot  maintain  an  action  of  trespass  against  his  tenant  by 
sufferance,  until  he  has  entered  upon  the  premises;  4  Kent,  Com.  116; 
a  point  to  which  we  shall  have  occasion  further  to  advert. 

Upon  this  view  the  liability  of  the  defendant  Fabyan,  to  answer  for 
the  loss  by  fire,  which  is  the  subject  of  this  suit,  is  regulated,  not  by 
the  rule  applicable  to  tenants  under  contract,  or  holding  by   right, 


TENANCIES    AT    SUFFERANCE 


163 


but  by  that  which  governs  the  case  of  the  disseizor  and  unqualified 
wrong-doer. 

By  Stat.  6  Anne,  c.  31,  made  perpetual  10  Anne,  c.  14,  (1708,  1712,) 
no  action  or  process  whatever  shall  be  had,  maintained  or  prosecuted 
against  any  person  in  whose  house  or  chamber  any  fire  shall  accidental- 
ly begin.  Co.  Litt.  6J ,  n.  Z1^ ;  3  Bla.  Com.  228,  n.;  1  Com.  Dig.  209, 
Action  for  Negligence,  A,  6.  It  is  not  necessary  to  consider  whether 
this  statute  has  been  adopted  here,  though  it  is  strongly  recommended 
by  its  intrinsic  equity,  because  at  all  events  a  different  rule  applies  in 
this  case. 

The  mere  disseizor  or  trespasser,  who  enters  without  right  upon  the 
land  of  another,  is  responsible  for  any  damage  which  results  from 
any  of  his  wrongful  acts.  Such  a  disseizor  is  liable  for  any  damages 
occasioned  by  him,  whether  willful  or  negligent.  He  had  no  right 
to  build  any  fire  upon  the  premises,  and  if  misfortune  resulted  from 
it  he  must  bear  the  loss. 

For  this  purpose  the  defendant  Fabyan  stands  in  the  position  of  a 
disseizor. 

II.  Assuming  that  Fabyan  is  liable  for  the  loss  of  these  buildings, 
the  question  arises,  whether  he  is  liable  in  this  form  of  action;  and. 
as  we  have  remarked,  hg_js  not  liable  in, trespass.  Chancellor  Kent, 
(4  Com.  116,)  says:  "A  tenant  at  sufferance  is  one  that  comes  into 
possession  of  land  by  lawful  title,  but  holdeth  over  by  wrong  after 
the  determination  of  his  interest.  He  has  only  a  naked  possession,  and 
no  estate  which  he  can  transfer,  or  transmit,  or  which  is  capable  of 
enlargement  by  release,  for  he  stands  in  no  privity  to  his  landlord, 
nor  is  he  entitled  to  notice  to  quit;  and,  independent  of  the  statute, 
he  is  not  liable  to  pay  any  rent.  He  holds  by  the  laches  of  the  land- 
lord, who  may  enter  and  put  an  end  to  the  tenancy  when  he  pleases. 
But  before  entry  he  cannot  maintain  an  action  of  trespass  against 
the  tenant  by  sufferance."  1  Cru.  Dig.  tit.  9,  c.  2 ;  Rising  v.  Stannard, 
17  Mass.  282;  Keay  v.  Goodwin,  16  Mass.  1,  4;  2  Bla.  Com.  150;  Co. 
Litt.  57,  b;  Livingston  v.  Tanner,  12  Barb.  (N.  Y.)  483;  Trevillian  v. 
Andrew,  5  Mod.  384. 

If,  then,  Fabyan  is  answerable  at  all,  he  must  be  liable  to  the  action 
of  trespass  on  the  case.  There  is  no  evidence  of  any  entry,  and  the 
demand  of  possession,  whatever  its  other  effects  may  be,  is  not  an 
entry,  nor  do  we  find  it  made  equivalent  to  an  entry. 

The  case  of  West  v.  Trende,  Cro.  Car.  187,  s.  c.  Jones  124,  224, 
is  a  decision  that  case  lies  in  such  a  case. 

"Action  upon  the  case.  Whereas  he  was  and  yet  is  possessed  of 
a  lease  for  divers  years  adtunc  et  adhuc  ventur,  of  a  house,  and  being 
so  possessed  demised  it  to  the  defendant  for  six  months,  and  after  the 
six  months  expired,  the  defendant  being  permitted  by  the  plaintiff  to 
occupy  the  said  house  for  two  months  longer,  he,  the  defendant,  during 
that  time  pulled  down  the  windows,  etc.     Stone  moved  in  arrest  of 


164  ESTATES    LESS    THAN    FREEHOLD 

judgment  that  this  action  lies  not,  for  it  was  the  plaintiff's  folly  to  per- 
mit the  defendant  to  continue  in  possession,  and  to  be  a  tenant  at  suf- 
ferance, and  not  to  take  course  for  his  security ;  and  if  he  should  have 
an  action,  it  should  be  an  action  of  trespass,  as  Littleton,  §  71.  If  ten- 
ant at  will  hath  destroyed  the  house  demised,  or  shop  demised,  an 
action  of  trespass  lies,  and  not  an  action  upon  the  case.  But  all  the 
court  conceived  that  an  action  of  trespass  or  an  action  upon  the  case 
may  well  be  brought  at  the  plaintiff's  election,  and  properly  in  this 
case  it  ought  to  be  an  action  upon  the  case,  to  recover  as  much  as  he 
may  be  damnified,  because  he  is  subject  to  an  action  of  waste;  and 
therefore  it  is  reason  that  he  should  have  his  remedy  by  action  upon 
the  case.  Whereupon  rule  was  given  that  judgment  should  be  entered 
for  the  plaintiff." 

III.  It  seems  clear  that  if^Fabyan  is  to  be  regarded  as  a  wrong- 
doer in  retaining  the  possession  of  the  plaintiff's  property  after  his 
lease  had  expired,  all  who  aided,  assisted,  encouraged  or  employed  liim 
to  retain  this  possession,  must  be  regarded  as  equally  tort-feasors,  and 
equally  responsible  for  any  damage  resulting  from  his  wrongful  acts. 
No  more  direct  act  could  be  done  to  encourage  a  tenant  in  keeping 
possession,  than  that  of  leasing  to  him  the  property,  unless  it  was  that 
of  giving  him  a  bond  of  indemnity,  such  as  is  stated  in  this  case.  In 
wrongs  of  this  class  all  are  principals,  and  the  defendant.  Dyer,  must 
be  held  equally  responsible  with  Fabyan;  and  it  seems  clear  that  as 
Dyer  could  justify  in  an  action  of  trespass  under  the  authority  of 
Fabyan,  so  as,  like  him,  not  to  be  liable  in  that  action,  he  must  be 
liable  with  him  in  an  action  upon  the  case. 

Whether  the  allegations  of  the  declarations  are  suitable  to  charge 
either  of  the  defendants,  we  have  not  considered,  as  the  court  have  not 
been  furnished  with  a  copy. 

IV.  The  case  of  Russell  v.  Fabyan.  27  N.  H.  529,  is  not  to  be  re- 
garded as  a  decision  of  the  question  raised  in  this  case,  in  relation  to 
the  sale  of  a  supposed  right  of  redemption  as  belonging  to  Burnham, 
after  the  first  levy  made  upon  the  property.  It  was  there  held,  upon 
the  facts  appearing  in  that  case,  that  independent  of  the  question  of 
fraud  in  Burnham's  deed  to  Russell,  all  Burnham's  right  of  redeeming 
the  levy,  which  might  be  made  upon  the  attachment  subsisting  at  the 
time  of  the  deed,  and  of  course  good  against  it,  passed  to  Russell. 
Upon  this  point  there  can  be  no  question,  and  none  is  suggested.  The 
question  then  arose,  whether,  if  Russell's  deed  was  proved  to  be  fraud- 
ulent as  to  the  creditors  of  Burnham.  the  right  of  redemption  did  not 
pass  to  Dyer  by  the  sale  on  his  second  execution,  so  as  to  invalidate 
the  tender  made  by  Russell.  This  question  might  have  been  met  and 
decided,  but  the  case  did  not  require  it.  It  was  held  that  whether 
Russell's  title  was  good  or  bad,  Fabyan,  as  his  tenant,  could  not  dis- 
pute it.  He  could  be  discharged  from  his  liability  to  pay  his  rent, 
which  was  the  subject  of  that  action,  only  by  an  eviction  by  the  lessor, 


TENANCIES   Ar   SUFFERANCE  165 

or  by  someone  who  had  a  paramount  title  to  his ;  a  mere  outstanding 
title  not  put  in  exercise  is  not  a  defence.  The  defendant  relied  on  an 
eviction  on  the  14th  of  June,  1848,  as  his  defence.  The  sale  of  the 
right  of  redemption  was  made  on  the  31st  of  July  following,  and  after 
that  date  there  was  no  eviction,  so  that  the  attempt  there  was  merely 
to  show  an  outstanding  but  dormant  title,  which  it  proved  would  be 
no  defence.  And  the  court  took  the  ground  that  Fabyan  stood  in  no 
position  to  raise  a  question  as  to  the  validity  of  Russell's  title,  except 
so  far  as  the  opposing  title  was  the  occasion  of  some  disturbance  of 
his  estate.  So  far  as  the  principles  stated  in  that  case  are  concerned, 
they  appear  to  us  sound  and  unanswerable.  Whether,  if  the  case  had 
taken  a  different  form,  the  result  would  have  been  in  any  degree  dif- 
ferent, it  is  not  necessary  to  enquire. 

By  our  statute,  every  debtor  whose  land  or  any  interest  in  land  is 
sold  or  set  off  *on  execution,  has  a  right  to  redeem  by  paying  the  ap- 
praised value,  or  sale  price,  with  interest,  within  one  year.  Rev.  Stat, 
c.  195,  §  13;  Id.  c.  196,  §  5;  (Comp.  Stat.  501,  502.)  This  right  to  re- 
deem is  also  subject  to  be  levied  upon  and  sold,  as  often  as  a  creditor 
supposes  he  can  realize  any  part  of  his  debt  by  a  sale,  until  some  one 
of  the  levies  or  sales  becomes  absolute.  But  these  sales  have  each  in- 
separably connected  with  them  the  right  of  redemption.  If  the  debtor 
has  parted  with  his  title  before  the  levies  are  made  while  the  property 
is  under  an  attachment,  that  right  of  redemption  is  vested  in  his 
grantee,  who,  being  the  party  interested,  (Rev.  Stat.  c.  196,  §  14,)  may 
redeem  any  sale  or  levy,  if  he  pleases;  the  effect  of  his  payment  or 
tender  for  this  purpose  being  of  course  dependent  upon  the  state  of 
facts  existing  at  the  time. 

So,  if  there  is  no  attachment  upon  the  property  at  the  time  of  the 
debtor's  conveyance,  but  his  creditors  levy  upon  the  property,  upon 
the  ground  that  his  conveyance  was  not  made  in  good  faith,  and  upon 
an  adequate  consideration,  and  so  is  fraudulent  and  void  as  to  them, 
the  effect  is  the  same.  Any  creditor  may  levy  his  execution  upon  the 
right  of  redemption  of  any  prior  levy  or  sale,  the  deed  of  the  debtor 
being  without  legal  operation  to  place  either  the  property  -itself  or  any 
interest  in  it  out  of  the  reach  of  his  process.  And  the  right  of  redemp- 
tion, so  long  as  it  retains  any  value  in  the  judgment  of  any  creditor, 
remains  liable  to  his  levy ;  but  when  the  creditors  have  exhausted  their 
legal  remedies,  the  right  of  redemption,  necessarily  incident  to  every 
levy  on  real  estate,  still  remains,  and  it  is  the  right  not  of  the  debtor, 
but  of  his  grantee,  who  may  exercise  it  at  his  pleasure. 

This  we  conceive  was  the  position  of  the  present  case.  The  first 
levy  by  Dyer  being  founded  on  his  attachment,  took  precedence  of 
Russell's  deed;  but  Russell  had  still  the  right  to  redeem  as  grantee  of 
Burnham,  whether  his  deed  was  valid  as  to  creditors  or  not.  When 
the  right  of  redeeming  the  first  levy  was  sold,  on  the  ground  that  the 
deed  to  Russell  was  fraudulent  and  invalid,  a  right  of  redemption  still 
remained  to  Russell,  and  he  had  a  right,  as  a  party  interested  in  the 


166  ESTATES    LESS    THAX    FREEHOLD 

land,  to  pay  or  tender  the  amount  of  the  first  levy  to  Dyer,  and  so  to 
discharge  it.  By  that  payment  or  tender  it  was  effectually  discharged, 
whatever  might  be  the  rights  or  duties  of  Dyer,  or  Russell,  or  any  one 
else,  growing  out  of  the  sale  of  the  right  of  redemption  upon  Dyer's 
second  execution,  which,  being  founded  upon  no  attachment  was  prima 
facie  a  nullity  as  to  Russell,  and  was  dependent  for  its  effect  upon 
the  evidence  that  might  be  oft'ered,  showing  Russell's  deed  void  as  to 
creditors. 

The  present  case  stands  free  from  any  question  growing  out  of  the 
relation  of  landlord  and  tenant,  as  that  relation  is  not  alleged,  and  the 
lease  of  Russell  had  expired,  and  Dyer  had  never  stood  in  that  rela- 
tion. The  evidence  offered  that  Burnham's  deed  to  Russell  was  fraud- 
ulent as  to  his  creditors,  is  not  open  to  any  objection  of  that  kind, 
which  was  held  decisive  in  27  N.  H.  If  the  facts  warrant  that  de- 
fence, the  evidence  is'  competent;  and  if  it  should  be  shown  that  the 
deed  to  Russell  was  void  as  to  creditors,  and  Dyer  was  one  of  that 
class,  his  second  levy  was  good,  if  properly  made,  and  the  title  to  these 
premises  passed  to  him,  subject  to  his  prior  and  any  subsequent  levy, 
and  to  Russell's  right  of  redemption. 

As  the  offer  of  the  defendant  to  prove  Burnham's  deed  to  Russell 
to  be  fraudulent  and  void  as  to  creditors,  and  as  to  the  defendant. 
Dyer,  as  one  of  them,  was  refused,  there  must  be  a  new  trial. 


IV.  Licenses — Revocation  of  ^* 


FERGUSON  v.   SPENCER. 
(Supreme  Court  of  Indiana,  1S90.     127  lud.  66,  25  N.  E.  1035). 

Appeal  from  circuit  court,  Warren  county;  Frank  E.  Everett,  Spe- 
cial Judge. 

Mitchell,  J.  The  nature  of  the  action  as  disclosed  by  the  plead- 
ings is  not  very  well  defined.  It  may  be  regarded  as  a  suit  to  re- 
cover damages  caused  by  interrupting  the  flow  of  an  artificial  stream 
through,  or  diverting  it  from,  a  tile  drain  through  which  water  was 
supplied  to  the  plaintiff's  animals  on  her  farm.  The  merits  of  the 
case  may  be  determined  upon  the  following  facts  returned  to  the 
court  in  a  special  verdict :  In  1884,  the  plaintiff,  Mrs.  Spencer,  and 
the  appellant,  William  Ferguson,  were  adjoining  land-owners  in  War- 
ren county,  their  farms  being  separated  by  a  public  highway  running 
east  and  west,  on  the  division  line.  Their  farms  occupied  such  a  re- 
lation as  that  surface  and  spring  water  collected  on,  and  issuing  from, 
the  defendant's  land  was  discharged  over  and  through  a  depression, 
with  more  or  less  defined  banks,  through  a  similar  depression  over 

1*  For  discussion  of  principles,  see  Burdicli,  Real  Prop.  §§  97,  98. 


LICENSES — REVOCATION  OF  167 

and  upon  the  plaintiff's  land.  In  the  year  above  mentioned  the  par- 
ties mutually  agreed  to  construct  a  covered  tile  drain,  of  specified 
dimensions,  to  be  laid  at  a  given  depth,  each  to  construct  the  distance 
required  on  his  or  her  own  land.  In  pursuance  of  this  agreement, 
the  plaintiff,  commencing  at  the  highway  separating  her  farm  from 
that  of  the  defendant,  constructed  a  drain  of  the  dimensions  agreed 
upon,  of  the  length  of  40  rods,  at  a  cost  of  over  $60.  The  defend- 
ant at  the  same  time  constructed  a  similar  drain  on  his  land,  con- 
necting it  with  that  built  by  the  plaintiff  at  one  end,  and  with  an 
existing  tile  drain  on  his  land  at  the  other,  thereby  making  a  contin- 
uous drain  over  the  lands  of  both,  through  which  water  flowed  con- 
stantly. The  drain  thus  constructed  was  beneficial  to  the  plaintiff's 
farm,  enhancing  its  value  by  affording  her  more  perfect  drainage  than 
before,  and  by  furnishing  a  constant  supply  of  living  water  for  stock 
on  her  farm,  she  having  utilized  the  water  by  constructing  a  con- 
venient watering  place.  In  1887,  the  defendant  refused  to  continue 
the  arrangement,  and  dug  up  some  of  the  tiling  on  his  own  land,  so 
as  to  disrupt  the  drain,  and  diminish  the  supply  of  water,  to  the 
damage  of  the  plaintiff. 

The  question  is,  whether  or  not,  after  money  had  been  expended 
in  constructing  the  drain,  in  reliance  upon  the  agreement,  either  of 
the  parties,  without  the  consent  of  the  other,  could  terminate  the 
arrangement,  without  becoming  liable  for  any  damage  which  might 
result.  The  effect  of  the  agreement,  when  acted  upon  by  the  par- 
ties, was  to  create  mutual  or  cross  licenses  in  favor  of  each  in  the 
land  of  the  other.  Each  was  given  a  license  from  the  other  to  make 
use  of  the  other's  land  for  the  purpose  of  conducting  water  over  it, 
for  a  purpose  supposed  to  be  beneficial  to  his  own  land.  A  "license" 
is  defined  to  be  an  authority  given  to  do  some  act,  or  a  series  of  acts, 
on  the  land  of  another  without  possessing  an  estate  therein.  Cook 
V.  Stearns,  11  Mass.  533;  13  Amer.  &  Eng.  Enc.  Law,  539.  By 
means  of  the  arrangement  entered  into,  the  plaintiff  obtained  a  license 
to  connect  the  covered  tile  drain  which  she  constructed  with  a  similar 
drain  constructed  by  the  defendant,  thereby  affording  her  the  means 
of  drawing  or  conducting  water  from  springs  and  other  sources  on 
the  defendant's  land,  for  the  benefit  of  her  farm.  This  is  found  to 
have  been  a  valuable  privilege,  to  obtain  which  the  plaintiff'  expended 
money  in  reliance  upon  a  mutual  agreement  entered  into  with  the 
defendant.  It  is  everywhere  settled  that  a  parol  license  to  use  the 
land  of  another  is  revocable  at  the  pleasure  of  the  licensor  unless 
the  license  has  been  given  upon  a  valuable  consideration,  or  money 
has  been  expended  on  the  faith  that  it  was  to  be  perpetual  or  con- 
tinuous. Where  a  license  has  been  executed  by  an  expenditure  of 
money,  or  has  been  given  upon  a  consideration  paid,  it  is  either  ir- 
revocable altogether,  or  cannot  be  revoked  without  remuneration,  the 
reason  being  that  to  permit  a  revocation  without  placing  the  other 


lt>8  ESTATES    LESS    THAN    FREEHOLD 

£arty  in  statu  quo  would  be  fraudulent  and  unconscionable.  Nowlin 
V.  Whipple,  120  Ind.  596,  22  N.  E.  669,  6  L.  R.  A.  159;  Robinson 
V.  Thrailkill,  110  Ind.  117,  10  N.  E.  647;  Snowden  v.  Wilas,  19  Ind. 
10,  81  Am.  Dec.  370;  Clark  v.  Glidden,  60  Vt.  702,  15  Atl.  358. 
Where  a  license  is  coupled  with  an  interest,  or  the  licensee  has  done 
acts  in  pursuance  of  the  license  which  create  an  equity  in  his  favor, 
it  cannot  be  revoked.     Iron  Co.  v.  Wright,  32  N.  J.  Eq.  248. 

The  present  case  is  closely  analogous  to  Clark  v.  Glidden,  supra, 
where  it  was  held  that  an  executed  license  to  lay  pipes  to  conduct 
water  from  one  farm  to  another,  for  the  benefit  of  the  owner  of 
the  latter,  was  irrevocable,  and  the  licensor  was  enjoined,  upon  terms, 
from  interfering  with  the  water-pipes  laid  in  pursuance  of  the  license. 
The  present  case  is  not  distinguishable  in  principle.  It  may  be  con- 
ceded that  the  adjudications  upon  the  subject  of  the  right  to  revoke 
parol  licenses  are  not  uniform,  and  that  they  cannot  be  successfully 
classified  or  arranged  into  harmonious  groups;  but  it  is  the  sett-led 
law  of  this  state,  as  it  is  of  many  others,  that,  where  a  license  in- 
volving the  expenditui-e  of  money  has  been  so  far  executed  that  its 
withdrawal  would  operate  as  a  fraud  upon  the  person  who  expended 
money  in  reliance  upon  it,  no  revocation  can  take  place  without  making 
compensation  to  the  person  injured  by  the  withdrawal.  Simons  v. 
Morehouse,  88  Ind.  391,  and  cases  cited;  Rogers  v.  Cox,  96  Ind. 
157,  49  Am.  Rep.  152.  Thus,  in  Rerick  v.  Kern,  14  Serg.  &  R.  (Pa.) 
267,  16  Am.  Dec.  497,  and  note,  a  leading  case  on  the  subject,  it  is 
held  that  an  executed  license,  the  execution  of  which  involved  the 
expenditure  of  money  or  labor,  is  regarded  in  equity  as  an  executed 
agreement  for  a  valuable  consideration,  and  that  it  is  therefore  irrev- 
ocable, although  given  merely  by  parol,  and  relating  to  the  use  and 
occupation  of  real  estate.  This  doctrine  is  so  thoroughly  settled  by 
the  decisions  of  this  court  that  we  do  not  deem  it  profitable  to  elab- 
orate the  subject  further.  See  5  Lawson,  Rights  &  Rem.  §  2675; 
Woodbury  v.  Parshley,  7  N.  H.  237,  26  Am.  Dec.  739.  The  rule  is, 
of  course,  different  where  nothing  but  a  mere  naked  license  is  in- 
volved. Parish  v.  Kaspare,  109  Ind.  586,  10  N.  E.  109.  It  may  be 
conceded  that  a  different  rule  prevails  in  the  state  of  New  York,  as 
well  as  in  some  other  states.  Cronkhite  v.  Cronkhite,  94  N.  Y.  323 ; 
Johnson  v.  Skillman,  29  Minn.  95,  12  N.  W.  149,  43  Am.  Rep.  192. 

Some  other  questions  of  minor  importance,  which  do  not  affect 
the  merits  of  the  case,  are  suggested.  It  is  sufficient  to  say  we  have 
examined  these  questions,  and  find  no  error  which  would  justify  a 
reversal  of  the  judgment.     Judgment  affirmed,  with  cost. 


JOINT   OWNERSHIP    OF    ESTATES  1G9 


JOINT  OWNERSHIP  OF  ESTATES 

I.  Joint  Tenancies  ^ 

1.  Definition — How  Created 


SIMONS  V.  McLAIN. 
(Supreme  Court  of  Kansas,  1893.     51  Kan.  153,  32  Pac.  919). 

Error  from  district  court,  Sedgwick  county;    C.  Reed,  Judge. 

Action  of  ejectment  by  Lewis  Simons  against  Hester  McLain. 
There  was  judgment  for  defendant,  and  plaintiff  brings  error.  Re- 
versed. 

The  facts  on  which  are  based  the  claims  of  Lewis  Simons,  the 
plaintiff,  and  Hester  McLain,  the  defendant,  are  as  follows : 

On  the  17th  day  of  May,  1872,  and  for  more  than  one  year  prior 
thereto,  Charles  H.  Hunter  was  the  owner  in  fee  simple  of  the  N.  E. 
%.  oi  the  N,  E.  Ya  of  section  28,  township  27  S.,  of  range  1  E.  of 
the  sixth  P.  M.,  in  Sedgwick  county.  On  the  17th  day  of  May,  1872, 
while  still  seised  in  fee  simple  of  said  lands.  Hunter,  a  single  man, 
executed  and  delivered  to  Lewis  Simons  and  E.  G.  Tewksbury  his 
warranty  deed,  dated  that  day,  for  the  above-described  lands.  The 
following  is  a  copy  of  said  deed,  omitting  the  certificate  of  acknowl- 
edgment, which  was  in  due  form: 

"This  deed,  made  this  seventeenth  day  of  May,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  seventy  two,  between  Charles 
H.  Hunter,  (a  single  man,)  of  Wichita,  county  of  Sedgwick,  and  state 
of  Kansas,  of  the  first  part,  and  Lewis  Simons  and  E.  G.  Tewks- 
bury, of  Hillsborough,  and  state  of  New  Hampshire,  of  the  second 
part,  witnesseth.  That  the  said  party  of  the  first  part,  for  and  in 
the  consideration  of  the  sum  of  $1,200,  to  him  in  hand  paid  by  the 
said  parties  of  the  second  part,  the  receipt  whereof  is  hereby  acknowl- 
edged, does  by  these  presents  grant,  bargain,  sell,  remise,  release,, 
alien,  convey,  and  confirm  unto  the  said  party  of  the  second  part,  and 
to  their  heirs  and  assigns,  forever,  all  of  the  following  described 
tract,  piece,  and  parcel  of  land,  lying  and  situate  in  the  county  of 
Sedgwick  and  state  of  Kansas,  to  wit,  the  northeast  one  quarter  of 
the  northeast  one  quarter  of  section  No.  28,  in  township  No.  27  south, 
of  range  1  east,  containing  40  acres,  more  or  less.  [Stamp  $1.50.] 
Together  with  all  and  singular  the  hereditaments  and  appurtenances 
thereunto  belonging  or  in  any  wise  appertaining.  To  have  and  to  hold 
the  same  unto  the  said  parties  of  the  second  part,  their  heirs  and  as- 

1  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  101. 


170  JOINT   OWNERSHIP    OF    ESTATES 

signs,  forever.  And  the  said  Charles  H.  Hunter,  for  himself  and 
his  heirs,  does  hereby  covenant  and  agree  to  and  with  the  said  parties 
of  the  second  part,  their  heirs  and  assigns,  that  he  will  warrant  and 
forever  defend  the  same  lands  and  appurtenances,  and  every  part 
and  parcel  thereof,  unto  the  said  parties  of  the  second  part,  their 
heirs  and  assigns,  against  the  said  party  of  the  first  part  and  his 
heirs,  and  against  all  and  every  person  or  persons  whomsoever  law- 
fully claiming  or  to  claim  the  same.  In  testimony  whereof  the  said 
party  of  the  first  part  has  hereunto  set  his  hand  the  day  and  year  first 
above  written.  Executed  and  delivered  in  the  presence  of  C.  A.  Phil- 
lip.    Charles  H.  Hunter.     [Seal.]"     . 

The  deed  was  filed  for  record  and  recorded  in  the  office  of  the 
register  of  deeds  of  Sedgwick  county  in  this  state. 

On  the  22d  day  of  March,  1877,  E.  G.  Tewksbury  died  without 
having  alienated  the  land,  or  any  part  thereof,  during  his  lifetime. 
On  the  28th  of  March,  1877,  letters  testamentary  with  the  will  an- 
nexed, were  issued  to  Submit  R.  Tewksbury  as  executrix  of  the  last 
will  and  testament  of  E.  G.  Tewksbury,  deceased,  by  the  probate  court 
of  Hillsborough  county,  N,  H.,  a  court  having  jurisdiction  of  the  es- 
tate of  E.  G.  Tewksbury,  deceased.  On  the  21st  day  of  February, 
1882,  Submit  R.  Tewksbury  filed  in  the  office  of  the  probate  court 
of  Sedgwick  county  a  properly  authenticated  copy  of  her  appoint- 
ment as  executrix  of  said  estate  by  the  probate  court  of  Hillsborough 
county,  N.  H.  She  also  filed  her  petition  in  the  probate  court  of 
Sedgwick  county,  praying  for  an  order  to  sell  real  estate  to  pay  debts 
of  E.  G.  Tewksbury,  deceased.  All  the  proper  steps  necessary  for 
the  execution  of  a  deed  in  proper  form  by  an  executrix  with  the 
will  annexed  were  observed,  and  Submit  R.  Tewksbury,  on  May  8, 
1882,  as  executrix  of  the  estate  and  last  will  and  testament  of  E.  G. 
Tewksbury,  deceased,  executed  a  deed  for  the  undivided  one  half  of 
said  lands  to  Henry  Schweiter.  On  the  12th  day  of  June,  1882, 
Lewis  Simons  and  Mary  Simons,  his  wife,  executed  and  delivered  to 
Henry  Schweiter  their  warranty  deed  for  an  undivided  one  half  of 
said  premises.  The  deed  made  by  Lewis  Simons  was  executed  and 
delivered  after  the  death  of  E.  G.  Tewksbury.  Lewis  Simons  has 
made  no  other  conveyance  of  said  land.  All  the  interest  that  Henry 
Schweiter  acquired  in  the  land  described  in  the  petition  by  virtue  of 
said  deeds  has  passed  by  sundry  mesne  conveyances  from  Henry 
Schweiter  to  Hester  McLain,  who  claims  to  own,  not  only  the  undi- 
vided half  of  the  land  as  described  in  the  petition,  but  also  the  other 
undivided  one  half,  all  of  which  is  included  in  the  tract  conveyed  by 
Charles  H.  Hunter  to  Lewis  Simons  and  E.  G.  Tewksbury.  The 
plaintiff  claims  to  own  the  undivided  one  half  of  the  premises  as 
set  forth  in  the  petition,  and  not  conveyed  by  him. 

Lewis  Simons,  the  plaintiff,  commenced  his  action  in  the  ordinary 
form   of  ejectment.      Hester   McLain,  the   defendant,    answered   by 


JOINT   TENANCIES  ITI 

setting  out  in  full  the  facts  on  which  her  title  was  based.  The  plain- 
tiff demurred  to  this  answer,  as  not  alleging  facts  sufficient  to  consti- 
tute a  defense.  The  court  overruled  the  demurrer.  The  plaintiff 
elected  to  stand  upon  the  demurrer,  whereupon  the  court  rendered 
judgment  for  the  defendant.  The  plaintiff  excepted,  and  brings  the 
case  here  for  review, 

HoRTON,  C.  J.,  (after  stating  the  facts.)  One  question  only  is  pre- 
sented by  the  record,  and  that  is  whether,  on  the  22d  day  of  March, 
1877,  the  date  of  the  death  of  E.  G.  Tewksbury,  estates  by  joint  ten- 
ancy existed  in  Kansas.  By  the  common  law,  if  an  estate  was  con- 
veyed to  two  or  more  persons  without  indicating  how  the  same  was 
to  be  held,  it  was  understood  to  be  in  joint  tenancy.  A  joint  ten- 
ancy is  defined  to  be  "when  several  persons  have  any  subject  of  prop- 
erty jointly  between  them  in  equal  shares  by  purchase."  "Each  has 
the  whole  and  every  part  with  the  benefit  of  survivorship,  unless  the 
tenancy  be  severed."  In  the  quaint  language  of  the  law  they  hold, 
each  per  my  et  per  tout,  the  effect  of  which,  technically  considered, 
is  that,  for  purposes  of  tenure  and  survivorship,  each  is  the  holder 
of  the  whole.  The  grand  incident  of  joint  tenancy  is  survivorship, 
by  which  the  entire  tenancy  on  the  decease  of  any  joint  tenant  re- 
mains to  the  survivors,  and  at  length  to  the  last  survivor.  1  Washb. 
Real  Prop.  (5th  Ed.)  §§  406,  408;  Black,  Law  Diet.  651;  And.  Law 
Diet.  1018.  By  the  policy  of  the  American  "law,  "joint  tenancy,  if  not 
a  subject  of  aversion,  is  rarely  a  matter  of  preference."  Freem.  Co- 
ten.  (2d  Ed.)  §  35.  In  Connecticut,  the  judiciary,  at  an  early  day, 
entirely  ignored  what  they  styled  "the  odious  and  unjust  doctrine 
of  survivorship."  Phelps  v.  Jepson,  1  Root,  48,  1  Am.  Dec.  33 ; 
Whittlesey  v.  Fuller,  11  Conn.  340.  In  Ohio  the  supreme  court  held 
that  joint  tenancy  did  not  exist  on  account  of  the  statute  in  that  state 
of  partition  and  distribution.  Sergeant  v.  Steinberger,  2  Ohio,  305, 
15  Am.  Dec.  553;  Penn  v.  Cox,  16  Ohio,  30;  Wilson  v.  Fleming, 
13  Ohio,  68.  But  in  most  of  the  states  the  rule  of  the  common  law 
concerning  estates  in  joint  tenancy  continued  until  abolished  by  stat- 
ute. 1  Washb.  Real  Prop.  (5th  Ed.)  677,  678,  notes,  with  states  and 
statutes  referred  to. 

In  this  state  the  legislature,  on  March  10,  1891,  passed  an  act  "to 
abolish  survivorship  in  joint  tenancy."  Sess.  Laws  1891,  c.  203,  p. 
349.  A  majority  of  this  court  in  Baker  v.  Stewart,  40  Kan.  442,  19 
Pac.  904,  2  L.  R.  A.  434,  10  Am.  St.  Rep.  213,  and^Shinn  v.  Shinn, 
42  Kan.  1,  21  Pac.  813,  4  L.  R.  A.  224,  recognized  "estates  in  entirety" 
where  the  deed  is  made  to  the  husband  and  wife,  and  ruled  that  in 
such  a  case,  the  survivor  of  the  two,  at  the  death  of  the  other,  was 
entitled  to  the  entire  estate.  This,  of  course,  was  a  full  adoption  of 
the  rule  of  "estates  in  entirety"  as  recognized  by  the  common  law. 
The  writer  of  this  dissented  in  that  case.  But,  following  the  law  thus 
declared  by  the  majority  of  the  court,  and  in  view  of  the  recognition 


172  JOINT  OWNERSHIP    OF   ESTATES 

of  joint  tenancy  by  the  statutes  of  the  state,  and  that  "survivorship 
in  joint  tenancy"  was  not  expressly  aboHshed  by  statute  until  1891, 
long  after  the  execution  of  the  deed  of  the  17th  of  May,  1872,  and 
long  after  the  death  of  E.  G.  Tewksbury  on  the  22d  of  March,  1877, 
we  must  hold  that  estates  by  joint  tenancy  existed  in  Kansas  prior  to 
March  10,  1891. 

The  reasons  are  much  stronger  for  recognizing  estates  by  joint  ten- 
ancy, as  existing  in  Kansas  prior  to  March  10,  1891,  than  that  "es- 
tates in  entirety"  existed,  in  view  of  the  statutes  and  decisions  of  this 
state,  recognizing  the  separate  existence  of  the  wife  from  the  hus- 
band. "The  jus  accrescendi  is  as  much  an  incident  of  estates  in  joint 
tenancy  as  of  estates  in  entirety."  2  Cooley,  Bl.  Comm.  181,  and 
note  2;  1  Washb.  Real  Prop.  406;  Dowling  v.  Salliotte,  83  Mich. 
131,  47  N.  W.  225.  Paragraph  7281,  c.  119,  Gen.  St.  1889,  reads: 
"The  common  law,  as  modified  by  constitutional  and  statutory  law, 
judicial  decisions,  and  the  condition  and  wants  of  the  people,  shall 
remain  in  force  in  aid  of  the  General  Statutes  of  this  state ;  but  the 
rule  of  the  common  law  that  statutes  in  derogation  thereof  shall  be 
strictly  construed  shall  not  be  applicable  to  any  general  statute  of 
this  state,  but  all  such  statutes  shall  be  liberally  construed,  to  promote 
their  object."  See,  also,  the  act  in  relation  to  landlords  and  tenants, 
concerning  joint  tenants,  (paragraphs  3630,  3631,  Gen.  St.  1889.) 
Then,  again,  the  legislature,  in  passing  the  act  of  March  10,  1891, 
a'boTrshing  joint  tenancy,  impliedly  admitted  the  previous  existence  of 
such  estates.  That  act  closes  as  follows:  "But  nothing  in  this  act 
shall  be  taken  to  affect  any  trust  estate."     Sess.  Laws  1891,  c.  203. 

The  judgment  of  the  district  court  will  be  reversed,  and  cause  re- 
manded for  further  proceedings  in  accordance  with  the  views  herein 
expressed.    All  the  justices  concurring. 


2.  Survivorship 


WILKENS  V.  YOUNG. 

(Supreme  Court  of  Indiana,  1895.    144  Ind.  1,  41  N.  E.  68.  55  Am.  St.  Rep.  162). 

Appeal  from  circuit  court,  Allen  county ;  C.  M.  Dawson,  Special 
Judge. 

Action  by  Mary  M.  Young  and  another  against  John  H.  Wilken  and 
another  to  recover  possession  of  and  to  quiet  title  to  land.  From  a 
judgment  for  plaintiffs,  defendants  appeal.  Affirmed  in  part,  and  re- 
versed in  part. 

JoRDAX,  J.  Action  by  appellees  in  the  lower  court,  wherein  they 
^ught  to  recover  the  possession  of  certain  described  real  estate  from 
the  appellant  John  H.  Wilken,  and  to  quiet  their  title  thereto  against 


JOINT   TENANCIES  1T3 

both  of  the  appellants.  A  trial  resulted  in  a  judgment  in  favor  of 
appellees,  from  which  appellants  prosecute  this  appeal,  and  assign  nu- 
merous errors,  whereby  they  assail  certain  rulings  and  decisions  of  the 
trial  court,  and  the  final  judgment  and  decree  thereof.  At  the  re- 
quest of  the  parties,  the  court  found  the  facts  specially,  and  stated 
its  conclusions  of  law  thereon.  As  this  finding  is  supported  in  its  ma- 
terial points  by  the  evidence,  and  as  the  principal  questions  involved 
in  this  appeal  are  fully  presented  by  said  finding  and  conclusions  of 
law  thereon,  we  deem  it  only  necessary  to  consider  the  alleged  errors 
arising  out  of  these  conclusions.     *     *     *  2 

The  next  points  arising  out  of  the  special  finding  and  conclusions 
of  law  relative  thereto,  and  which  are  presented  for  our  consideration, 
are  as  to'^the  power  of  Samuel  Gordon  to  mortgage  and  devise  his 
moiety  in  the  lands  involved  in  this  action.  This  will  necessitate  an 
exarnination,  at  least,  of  some  of  the  features  impressed  by  law  upon 
these  particular  estates  of  joint  tenancy,  when  they  are  once  created. 
Tenants  of  this  kind  are  said  to  hold  individually  and  jointly,  having 
one  and  the  same  interest,  accruing  through  one  and  the  same  convey- 
ance, commencing  at  the  same  time,  and  held  by  one  and  the  same 
possession.  Upon  the  death  of  one  joint  tenant,  there  being  no 
severance  in  the  estate,  his  entire  interest  is  cast  upon  the  survivor 
or  survivors,  to  the  exclusion  of  the  inheritance  of  the  same  by  his 
heirs.  The  interest  of  the  survivor  in  the  realty  is  consequently  in- 
creased by  the  extinguishment  of  the  interest  of  the  tenant  deceased. 
It  is  settled  in  law  that  a  joint  tenant  may  alienate  or  convey  to  a 
stranger  his  part  or  interest  in  the  realty,  and  thereby  defeat  the  right 
of  the  survivor.  Tied.  Real.  Prop.  §  238;  1  Washb.  Real  Prop.  682, 
ci:  22;  4  Kent,  Comm.  460;  1  Prest.  Est.  136;  Bevins  v.  Cline,  21 
Ind.  40;  6  Am.  &  Eng.  Enc.  Law,  892;  11  Am.  &  Eng.  Enc.  Law, 
1092 ;    Duncan  v.  Forrer,  6  Bin.  (Pa.)  193. 

In  the  ancient  language  of  the  law,  joint  tenants  were  said  to  hold 
per  my  et  per  tout,  or,  in  plain  words,  "by  the  moiety  or  half  and  by 
all" ;  the  true  interpretation  of  this  phrase  being  that  these  tenants 
were  seised  of  the  entire  realty  for  the  purpose  of  tenure  and  surviv- 
orship, while  for  the  purpose  of  immediate  alienation  each  had  only  a 
particular  part  or  interest.  Prest.  Est.  supra;  4  Kent,  Comm.  supra. 
Partition  at  common  law  could  not  be  enforced  by  joint  tenants,  but 
under  our  statute  partition  of  these  estates  may  be  enforced.  Rev. 
St.  1881,  §  1186  (Rev.  St.  1894,  §  1200).  The  interest  of  each  tenant 
is  subject  to  sale  upon  execution.  Thornburg  v.  Wiggins,  supra  [135 
Ind.  178,  34  N.  E.  999]  ;  Freem.  Ex'ns,  §  125. 

Having  these  rights  and  powers  at  least  over  his  interest  in  the  land 
so  held,  there  can  be  no  sufficient  reason  urged  why  the  power  of  the 
joint  tenant  to  mortgage  the  same  should  be  denied.  Any  interest  in 
real  estate  which  a  person  may  sell  and  convey  he  may  also  mort- 

2  Part  of  the  opinion  is  omitted. 


174  JOINT  OWNERSHIP    OF    ESTATES 


gage.  Jones,  Mortg.  §  136.  We  are  therefore  of  the  ophiion  that 
a  joint  tenant  may  mortgage  his  interest  in  the  joint  estate  in  Hke 
manner  as  though  he  were  a  tenant  in  common,  and  to  the  extent  of 
the  mortgage  Hen  the  right  of  the  survivor  will  be  destroyed  or  sus- 
pended, and  the  equity  of  redemption,  at  the  death  of  the  tenant, 
will  be  all  that  will  fall  to  the  surviving  companion.  This  right  of  the 
tenant  to  mortgage  is  supported  by  the  following  authorities :  York  v. 
Stone,  1  Salk.  158;  Simpson's  Lessee  v.  Amnions,  1  Bin.  (Pa.)  175,  2 
Am.  Dec.  425. 

It  is  settled  by  numerous  authorities  that  the  devise  under  the  will 
of  Samuel  Gordon,  of  his  interest  in  the  lands  in  question  to  appel- 
lant John  H.  Wilken,  was  inoperative  and  void,  and  the  latter  acquir- 
ed no  title  thereby.  The  reason  for  this  rule  is  apparent.  Unless  there 
is  a  severance  during  the  lifetime  of  the  devising  tenant,  at  his  death 
the  right  of  the  survivorship  immediately  accrues;  and,  as  the  devise 
cannot  take  effect  until  after  the  death  of  the  testator,  the  tenant  is 
thereby  disqualified  for  devising  his  moiety  in  lands  so  held ;  or  in 
other  words,  as  this  paramount  right  of  the  survivor  or  survivors  in- 
stantly prevails  upon  the  death  of  the  testator,  there  remains  no  es-' 
tate  of  inheritance  upon  which  the  will  can  operate.  Swift  v.  Roberts, 
3  Burrows,  1488;  Duncan  v.  Forrer,  supra;  4  Kent,  Comm.  supra. 
A  joint  tenant,  being  disqualified  to  exercise  this  power  at  common 
law,  is  also  disqualified  by  our  statute  of  wills.  Section  2726,  Rev. 
St.  1894  (section  2556,  Rev.  St.  1881),  provides  that  persons  may  de- 
vise any  interest  descendible  to  their  heirs  which  they  may  have  in 
any  lands,  tenements,  etc. 

As  we  have  seen  that  the  interest  of  a  joint  tenant  does  not  de- 
scend, it  follows,  therefore,  that  under  this  statute  he  has  no  right  or 
power  to  devise  the  same  by  will.  From  the  conclusions  which  we 
have  reached  herein,  it  is  apparent  that  the  court  erred  in  holding,  in 
its  first  conclusion,  that  the  deed  created  a  tenancy  by  entirety  in  Gor- 
don and  wife ;  that  it  also  erred  in  holding,  in  its  second  conclusion, 
that  the  mortgage  executed  to  appellant  Herman  Wilken  by  Samuel 
Gordon  is  void.  The  court  did  not  err  in  stating  its  third  and  fourth 
conclusions  of  law.  As,  under  the  special  finding  of  facts,  the  ulti- 
mate judgment  against  John  H.  Wilken  is  right;  therefore  the  inter- 
vening errors  complained  of  by  him  must  be  deemed  and  held  to  be 
harmless. 

The  judgment  as  against  Herman  Wilken  is  reversed,  and  the  cause 
remanded,  with  instructions  to  the  lower  court  to  grant  him  a  new 
trial,  and  leave  to  reform  the  issues  if  requested.  The  judgment  as  to 
John  H.  Wilken  is  affirmed.    All  concur. 


ESTATES    IN    ENTIRETY  175 


II.  Estates  in  Entirety 


THORNBURG  v.  WIGGINS. 

(Supreme  Court  of  Indiana,  1S93.    135  I nd.  178,  34  N.  E.  999,  22  L.  R.  A.  42, 

41  Am.  St.  Rep.  422). 

Appeal  from  circuit  court,  Randolph  county;  Leander  Monks, 
Judge. 

^Action  by  Daniel  S.  Wiggins  and  wife  against  William  H.  Thorn- 
burg  and  others  to  enjoin  a  sale  under  execution.  Demurrers  to  the 
complaint  were  overruled,  and  defendants  appeal.     Reversed. 

DaiIvEY,  J.  This  was  an  action  instituted  in  the  court  below,  in 
two  paragraphs,  in  the  first  of  which  appellees  allege,  in  substance, 
that  on  and  before  December  15,  1884,  one  Lemuel  Wiggins  was  the 
owner  of  a  certain  tract  of  real  estate,  therein  described,  containing 
80  acres ;  that  on  said  day  said  Lemuel  and  his  wife,  Mary,  executed 
and  delivered  to  the  appellees  a  warranty  deed,  conveying  to  them  the 
fee  simple  of  said  real  estate;  that  at  the  time  of  said  conveyance  the 
appellees  were,  ever  since  have  been,  and  now  are,  husband  and  wife ; 
that  said  deed  conveyed  to  the  appellees  the  title  to  said  real  estate, 
which  they  took  and  accepted,  ever  since  have  held,  and  now  hold 
by  entireties,  and  not  otherwise ;  that  appellees  hold  their  title  to  said 
real  estate  by  said  deed  of  Lemuel  Wiggins,  and  not  otherwise ;  that 
on  the  24th  day  of  April,  1877,  Isaac  R.  Howard  and  Isaac  N.  Gaston, 
who  were  defendants  below,  recovered  a  judgment  in  the  Randolph 
circuit  court  for  the  sum  of  $403.70  and  costs  against  one  John  T. 
Burroughs  and  the  appellee  Daniel  S.  Wiggins  as  partners  doing  busi- 
ness under  the  firm  name  of  Burroughs  &  Wiggins ;  that  on  May  12, 
1886,  said  Howard  and  Gaston  caused  an  execution  to  be  issued  on 
said  judgment,  and  placed  in  the  hands  of  the  appellant  Thornburg,  as 
sheriff  of  said  county,  and  directed  him  to  levy  the  same  on  said  real 
estate,  and  that  said  sheriff  did,  on  the  25th  day  of  May,  1886,  levy 
said  execution  on  said  real  estate,  or  on  the  one-half  interest  in  value 
thereof  taken  as  the  property  of  said  appellee  Daniel  S.  Wiggins,  to 
satisfy  said  writ;  that  pursuant  to  the  levy  thereof  said  sheriff  pro- 
ceeded, by  the  direction  of  said  Howard  and  Gaston,  to  advertise  said 
real  estate  for  sale  under  said  execution  and  levy  to  make  said  debt. 
and  did  on  the  8th  day  of  June  advertise  the  same  for  sale  on  the 
3d  day  of  July,  1886,  and  will  on  said  day  sell  the  same  unless  re- 
strained and  enjoined  from  so  doing  by  the  court;  that  said  Daniel 
S.  Wiggins  has  no  interest  in  said  premiacs  subject  to  sale  thereon ; 
that  the  appellees  hold  the  title  thereto  iS  tenants  by  entireties,  and 
not  otherwise ;    that  the  sale  of  said  tract  on  said  execution  would 

3  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  103. 


176  JOINT  OWNERSHIP    OF    ESTATES 

cast  a  cloud  on  the  appellees'  title,  etc.  The  second  paragraph  Is  the 
same  as  the  first  in  substantial  averments,  except  that  in  this  para- 
graph the  appellees  set  out  as  a  part  thereof  a  copy  of  the  deed  under 
which  they  claim  title  to  said  real  estate  as  such  tenants  by  entireties. 
The  granting  clause  of  the  deed  is  as  follows:  "This  indenture  wit- 
nesseth  that  Lemuel  Wiggins  and  Mary  Wiggins,  his  wife,  of  Ran- 
dolph county,  in  the  state  of  Indiana,  convey  and  warrant  to  Daniel 
S.  Wiggins  and  Laura  Belle  Wiggins,  his  wife,  in  joint  tenancy,"  etc. 

Appellants  separately  and  severally  demurred  to  each  paragraph  of 
the  complaint,  and  their  demurrers  were  overruled  by  the  court,  to 
which  the  appellants  excepted,  and,  refusing  to  answer  the  complaint, 
judgment  was  rendered  in  favor  of  appellees  on  said  demurrers.  Ap- 
pellants appeal,  assigning  as  errors  the  overruling  of  said  demurrers, 
and  urge  that  the  appellees  under  the  deed  took  as  joint  tenants,  and 
hence  that  the  husband's  interest  is  subject  to  levy  and  sale  upon 
execution. 

A  joint  tenancy  is  an  estate  held  by  two  or  more  persons  jointly,  so 
that  during  the  lives  of  all  they  are  equally  entitled  to  the  enjoyment 
of  the  land,  or  its  equivalent,  in  rents  and  profits ;  but  upon  the  death 
of  one  his  share  vests  in  the  survivor  or  survivors  until  there  be  but 
one  survivor,  when  the  estate  becomes  one  in  severalty  in  him,  and 
descends  to  his  heirs  upon  his  death.  It  must  always  arise  by  pur- 
chase, and  cannot  be  created  by  descent.  Such  estates  may  be  created 
in  fee,  for  life,  or  years,  or  even  in  remainder.  But  the  estate  held 
by  each  tenant  must  be  alike.  Joint  tenancy  may  be  destroyed  by 
anything  which  destroys  the  unity  of  title.  Our  law  aims  to  pre- 
vent their  creation,  and  they  cannot  arise  except  by  the  instrument 
providing  for  such  tenancy.  Griffin  v.  Lynch,  16  Ind.  398.  9  Amer. 
&  Eng.  Enc.  Law,  850,  says:  "Husband  and  wife  are,  at  common  law, 
one  person,  so  that  when  realty  vests  in  them  both  equally,  *  *  * 
they  take  as  one  person ;  they  take  but  one  estate,  as  a  corporation 
would  take.  In  the  case  of  realty,  they  are  seised,  not  per  my  et  per 
tout,  as  joint  tenants  are,  but  simply  per  tout;  both  are  seised  of  the 
whole,  and,  each  being  seised  of  the  entirety,  they  are  called  'tenants 
by  the  entirety,'  and  the  estate  is  an  estate  by  entireties.  *  *  * 
Estates  by  entireties  may  be  created  by  will,  by  instrument  of  gift 
or  purchase,  and  even  by  inheritance.  Each  tenant  is  seised  of  the 
whole ;  the  estate  is  inseverable,  cannot  be  partitioned ;  neither  hus- 
band nor  wife  can  alone  affect  the  inheritance;  the  survivor  takes 
the  whole."  This  tenancy  has  been  spoken  of  as  "that  peculiar  estate 
which  arises  upon  the  conveyance  of  lands  to  two  persons  who  are 
at  the  time  husband  and  wife,  commonly  called  'estates  by  entirety."  " 

As  to  the  general  features  of  estates  by  entireties  there  is  little  room 
for  controversy,  and  there  .a  none  between  counsel.  Our  statute  re- 
enacts  the  common  law.  Arnold  v.  Arnol;!,  30  Ind.  305 ;  Davis  v. 
Clark,  26  Ind.  424,  89  Am.  Dec.  474.     Strictly  speaking,  estates  by 


ESTATES   IN    ENTIRETY  177 

entireties  are  not  joint  tenancies,  (Chandler  v.  Cheney,  Z7  Ind.  391; 
Huiett  V.  Inlow,  57  Ind.  412,  26  Am.  Rep.  64)  the  husband  and  wife 
being  seised,  not  of  moieties,  but  both  seised  of  the  entirety  per  tout, 
and  not  per  my,  (Jones  v.  Chandler,  40  Ind.  589 ;  Davis  v.  Clark,  supra ; 
Arnold  v.  Arnold,  supra.)  It  has  been  said  by  this  court  in  some  of 
the  earlier  decisions  that  no  particular  words  are  necessary.  A  con- 
veyance which  would  make  two  persons  joint  tenants  will  make  a 
husband  and  wife  tenants  of  the  entirety.  It  is  not  even  necessary 
that  they  be  described  as  such,  or  their  marital  relation  referred  to. 
Morrison  v.  Seybold,  92  Ind.  302;  Hadlock  v.  Gray,  104  Ind.  596, 
4  N.  E.  167;  Dodge  v.  Kinzy,  101  Ind.  102;  Huiett  v.  Inlow,  57  Ind. 
414,  26  Am.  Rep.  64;  Chandler  v.  Cheney,  Z7  Ind.  395.  But  the 
court  has  said  that  the  general  rule  may  be  defeated  by  the  expression 
of  conditions,  limitations,  and  stipulations  in  the  conveyance  which 
clearly  indicate  the  creation  of  a  different  estate.  Hadlock  v.  Gray, 
supra;    Edwards  v.  Beall,  75  Ind.  401. 

Having  its  origin  in  the  fiction  or  common-law  unity  of  husband  and 
wife,  the  courts  of  some  states  have  held  that  married  women's  acts 
extending  their  rights  destroyed  estates  by  entirety,  but  this  court 
holds  otherwise,  (Carver  v.  Smith,  90  Ind.  226,  46  Am.  Rep.  210) 
and  the  greater  weight  of  authority  is  in  its  favor.  Our  decisions 
hold  that  neither  alone  can  alienate  such  estate.  Jones  v.  Chandler, 
supra;  Morrison  v.  Seybold,  supra.  There  can  be  no  partition. 
Chandler  v.  Cheney,  37  Ind.  391.  A  mortgage  executed  by  the  hus- 
band alone  is  void,  (Jones  v.  Chandler,  40  Ind.  588)  and  the  same  is 
true  of  a  mortgage  executed  by  both  to  secure  a  debt  of  the  husband, 
(Dodge  V.  Kinzy,  101  Ind.  105)  and  the  wife  cannot  validate  it  by 
agreement  with  the  purchaser  to  indemnify  in  case  of  loss  arising  on 
account  of  it,  (State  v.  Kennett,  114  Ind.  160,  16  N.  E.  173.)  A  judg- 
ment against  one  of  them  is  no  lien  upon  it.  Ditching  Co.  v.  Beck, 
99  Ind.  250;  McConnell  v.  Martin,  52  Ind.  434;  Orthwein  v.  Thomas, 
(111.)  13  N.  E.  564.  Upon  the  death  of  one,  the  survivor  takes  the 
whole  in  fee.  Arnold  v.  Arnold,  supra.  The  deceased  leaves  no  es- 
tate to  pay  debts,  (Simpson  v.  Pearson,  31  Ind.  1,  99  Am.  Dec.  577) 
and  during  their  joint  lives  there  can  be  no  sale  of  any  part  on  exe- 
cution against  either,  (Carver  v.  Smith,  supra;  Dodge  v.  Kinzy,  101 
Ind.  105;  Huiett  v.  Inlow,  57  Ind.  412,  26  Am.  Rep.  64;  Chandler 
v.  Cheney,  supra ;  Davis  v.  Clark,  supra ;  McConnell  v.  Martin,  su- 
pra ;  Cox's  Adm'r  v.  Wood,  20  Ind.  54.)  The  statutes  extending  the 
rights  of  married  women  have  no  effect  whatever  upon  estates  by 
entirety.  Carver  v.  Smith,  90  Ind.  223,  46  Am.  Rep.  210.  Such  estate 
is  in  no  sense  either  the  husband's  or  the  wife's  separate  property. 
The  husband  may  make  a  valid  conveyance  of  his  interest  to  his  wife, 
because  it  is  with  her  consent.  Enyeart  v.  Kepler,  118  Ind.  34,  20 
N.  E.  539,  10  Am.  St.  Rep.  94. 
Bued.Cas.Real  Pbop. — 12 


178  JOINT  OWNERSHIP    OF    ESTATES 

The  rule  that  husband  and  wife  take  by  entireties  was  enacted  in 
this  territory  ifi  1807,  nine  years  before  Indiana  was  vested  with 
statehood,  and  has  been  repeated  in  each  succeeding  revision  of  our 
statutes.  It  has  thus  been  the  law  of  real  property  with  us  for  86 
years.  Section  2922,  Rev.  St.  1881,  provides  that  "all  conveyances 
and  devises  of  lands,  or  of  any  interest  therein,  made  to  two  or  more 
persons,  except  as  provided  in  the  next  following  section,  shall  be  con- 
strued to  create  estates  in  common,  and  not  in  joint  tenancy,  unless 
it  be  expressed  therein  that  the  grantees  or  devisees  shall  hold  the 
same  in  joint  tenancy  and  to  the  survivor  of  them,  or  it  shall  mani- 
festly appear  from  the  tenor  of  the  instrument  that  it  was  intended 
to  create  an  estate  in  joint  tenancy."  Section  2923  provides  that  the 
preceding  section  shall  not  apply  to  conveyances  made  to  husband 
and  wife.  Under  a  statute  of  the  state  of  Michigan,  similar  in  all 
its  essential  qualities  to  our  own,  the  court  held  that,  "where  lands 
are  conveyed  in  fee  to  husband  and  wife,  they  do  not  take  as  ten- 
ants in  common,"  (Fisher  v.  Provin,  25  Mich.  347 ;)  they  take  by  en- 
tireties. Whatever  would  defeat  the  title  of  one,  would  defeat  the 
title  of  the  other.  Manwaring  v.  Powell,  40  Mich.  371.  They  hold 
neither  as  tenants  in  common  nor  as  ordinary  joint  tenants.  The  sur- 
vivor takes  the  whole.  During  the  lives  of  both,  neither  has  an  ab- 
solute inheritable  interest;  neither  can  be  said  to  own  an  undivided 
half.  Insurance  Co.  v.  Resh,  40  Mich.  241 ;  Allen  v.  Allen,  47  Mich. 
74,  ION.  W.  113. 

While  the  rule  of  entireties  was  predicated,  upon  a  fiction,  the  leg- 
islative intent  in  this  state  has  always  been  to  preserve  this  estate, 
and  has  continued  the  peculiar  statute  for  this  purpose.  Estates  by 
entireties  have  been  preserved  as  between  husband  and  wife,  although 
joint  tenancies  between  unmarried  persons  have  been  abolished,  so 
as  to  provide  a  mode  by  which  a  safe  and  suitable  provision  could 
be  made  for  married  women.  Carver  v.  Smith,  90  Ind.  227,  46  Am. 
Rep.  210.  "Where  a  rule  of  property  has  existed  for  seventy  years, 
and  is  sustained  by  a  strong  and  uniform  line  of  decisions,  there  is  but 
little  room  for  the  court  to  exercise  its  judgment  on  the  reasons  on 
which  the  rule  is  founded.  Such  a  rule  of  property  will  be  overruled 
only  for  the  most  cogent  reasons,  and  upon  the  strongest  convictions 
of  its  incorrectness.  *  *  *  It  is  evident  that  the  legislature  of 
1881  did  not  intend  to  repeal  the  statutes  establishing  tenancies  by  en- 
tireties. They  simply  intended  to  enlarge  in  some  particulars  the 
power  of  the  wife,  which  existed  already  under  the  Acts  of  1852  and 
the  years  following.  *  *  *  It  did  not  abolish  estates  by  entireties 
as  between  husband  and  wife,  but  provided  that  when  a  joint  deed 
was  made  to  husband  and  wife  they  should  hold  by  entireties,  and  not 
as  joint  tenants  or  tenants  in  common."  Carver  v.  Smith,  supra. 
In  Chandler  v.  Cheney,  37  Ind.,  on  page  396,  the  court  says:  "It  was 
a  well-settled  rule  at  common  law  that  the  same  form  of  words  which. 


ESTATES   IN    ENTIRETY  17i) 

if  the  grantees  were  unmarried,  would  have  constituted  them  joint 
tenants,  will,  they  being  husband  and  wife,  make  them  tenants  by 
entirety.     The  rule  has  been  changed  by  our  statute  above  quoted." 

The  whole  trend  of  authorities,  however,  is  in  the  direction  of  pre- 
serving such  tenancies,  where  the  grantees  sustain  the  relation  of  hus- 
band and  wife,  unless  from  the  language  employed  in  the  deed  it  is 
manifest  that  a  different  purpose  was  intended.  Where  a  contrary 
intention  is  clearly  expressed  in  the  deed,  a  different  rule  obtains.  "A 
husband  and  wife  may  take  real  estate  as  joint  tenants  or  tenants  in 
common,  if  the  instrument  creating  the  title  use  apt  words  for  the 
purpose."  1  Prest.  Est.  132;  3  Bl.  Comm.,  Sharswood's  note;  4  Kent, 
Comm..  side  p.  363;  1  Bish.  Mar.  Wom.  §  616  et  seq. ;  Freem.  Coten. 
§  72 ;  Fladung  v.  Rose,  58  Md.  13-24.  "And  in  case  of  devise  and 
conveyances  to  husband  and  wife  together,  though  it  has  been  said 
that  they  can  take  only  as  tenants  by  entireties,  the  prevailing  rule 
is  that,  if  the  instrument  expressly  so  provides,  they  may  take  as  joint 
tenants  or  tenants  in  common.''  Stew.  Husb.  &  Wife,  §§  307-310; 
Tied.  Real  Prop.  §  244.  "And  as  by  common  law  it  was  competent 
to  make  husband  and  wife  tenants  in  common  by  proper  words  in 
the  deed  or  devise,"  etc.,  (Hoffman  v.  Stigers,  28  Iowa,  310;  Brown 
v.  Brown,  133  Ind.  476,  32  N.  E.  1128,  33  N.  E.  615)  "so  it  seems 
that  husband  and  wife  may  by  express  words  be  made  tenants  in  com- 
mon by  gift  to  them  during  coverture,"  (McDermott  v.  French,  15  N. 
J.  Eq.  80.) 

In  Hadlock  v.  Gray,  104  Ind.  599,  4  N.  E.  167,  a  conveyance  had 
been  made  to  Isaac  Cannon  and  Mary  Cannon,  who  were  husband 
and  wife,  during  their  natural  lives,  and  the  court  say :  "The  language 
employed  in  the  deed  plainly  declares  that  Isaac  Cannon  and  Mary 
Cannon  are  not  to  take  as  tenants  by  entirety.  The  result  "v^ould 
follow  from  the  provision  destroying  the  survivorship,  for  this  is  the 
grand  and  essential  characteristic  of  such  a  tenancy.  *  *  *  ^\^q 
whole  force  of  the  language  employed  is  opposed  to  the  theory  that 
the  deed  creates  an  estate  in  fee  in  the  husband  and  wife."  The  court 
further  say :  "It  is  true  that  where  real  property  is  conveyed  to  hus- 
band and  wife  jointly,  and  there  are  no  limiting  words  in  the  deed, 
they  will  take  the  estate  as  tenants  in  entirety.  *  *  *  ^^xt,  while 
the  general  rule  is  as  we  have  stated  it,  there  may  be  conditions,  limi- 
tations, and  stipulations  in  the  deed  conveying  the  property  which  will 
defeat  the  operation  of  the  rule.  The  denial  of  this  proposition  in- 
volves the  affirmation  of  the  proposition  that  a  grantor  is  powerless 
to  limit  or  define  the  estate  which  he  grants,  and  this  would  conflict 
with  the  fundamental  principle  that  a  grantor  may  for  himself  deter- 
mine what  estate  he  will  grant.  To  deny  this  right  would  be  to  deny 
to  parties  the  right  to  make  their  own  contracts.  It  seems  quite  clear 
upon  principle  that  a  grantor  and  his  grantees  may  limit  and  define 
the  estate  granted  by  the  one  and  accepted  by  the  other,  although  the 


180  JOINT   OWNERSHIP    OF    ESTATES 

grantees  be  husband  and  wife."  The  court  then  adopts  the  language 
of  Washburn  (1  Washb.  Real  Prop.  674)  and  Tiedeman,  supra.  In  Ed- 
wards V,  Beall,  supra,  the  court  hold  that  when  lands  are  granted 
husband  and  wife  as  tenants  in  common  they  will  hold  by  moieties,  as 
other  distinct  and  individual  persons  would  do. 

If,  as  contended  by  appellees,  the  rule  prevail  that  the  same  words 
which,  if  the  grantees  were  unmarried,  would  have  constituted  them 
joint  tenants,  will,  they  being  husband  and  wife,  make  them  tenants 
by  entireties,  then  it  would  result  as  a  logical  conclusion  that  husband 
and  wife  cannot  be  joint  tenants,  because  by  this  rule,  words,  how- 
ever apt  or  appropriate  to  create  a  joint  tenancy,  would,  in  a  con- 
veyance to  husband  and  wife,  result  in  an  estate  by  entireties;  joint 
tenancy  would  be  superseded  or  put  in  abeyance  by  the  estate  created 
by  law, — tenancy  by  entirety.  The  result  of  such  reasoning  would 
be  to  destroy  the  contractual  power  of  the  parties  where  this  relation- 
ship between  the  grantees  is  shown  to  exist.  Any  other  process  of 
reasoning  would  carry  the  rule  too  far,  and  we  must  hold  it  modified 
to  the  extent  here  indicated.  Husband  and  wife,  notwithstanding  ten- 
ancies by  entirety  exist  as  they  did  under  the  common  law,  may  take 
and  hold  lands  for  life,  in  joint  tenancy  or  in  common,  if  appropriate 
language  be  expressed  in  the  deed  or  will  creating  it;  and  we  know 
of  no  more  apt  term  to  create  a  joint  tenancy  in  the  grantees  in  this 
estate  than  the  expression  "convey  and  warrant  to  Daniel  S.  Wig- 
gins and  Laura  Belle  Wiggins  in  joint  tenancy."  These  words  ap- 
pear in  the  granting  clause  of  the  deed  conveying  the  land  in  ques- 
tion, and  the  estate  accepted  and  held  by  the  grantees  is  thereby  lim- 
ited, and  they  hold  not  by  entireties,  but  in  joint  tenancy.  A  joint  ten- 
ant's interest  in  property  is  subject  to  execution.  Freem.  Ex'ns,  125. 
Judgment  reversed,  with  instructions  to  the  circuit  court  to  sustain 
the  demurrer  to  each  paragraph  of  the  complaint.* 

*  In  accord  with  the  preceding  case,  the  weight  of  authority  is  to  the  ef- 
fect that,  if  a  grant  to  husband  and  wife  shows  an  intention  to  create  a  joint 
tenancy  or  a  tenancy  in  common,  such  intention  will  prevail.  Donegan  v.  Don- 
cirMu.  HKi  Ala.  4SS.  15  South.  S2:;.  4U  Am.  St.  Kep.  53  (1S0.3) ;  Swan  v.  Waklen, 
156  Cal.  195,  103  Pac.  931,  134  Am.  St.  Rep.'  118,  20  Ann.  Cas.  194  (1909); 
Fladung  v.  Rose,  58  Md.  13  (1S82);  Hiles  v.  Fisher,  144  N.  Y.  30G,  39  N.  E. 
387,  30  L.  R.  A.  305,  43  Am.  St.  Rep.  762  (1895) ;  Isley  v.  Sellars.  153  N.  C. 
374,  69  S.  E.  279  (1910).  Some  cases,  however,  hold  that,  regardless  of  the 
terms  used  in  the  instrument,  they  will  take  an  estate  in  entirety.  Wilson 
V.  Frost,  186  Mo.  311,  85  S.  W.  375,  105  Am.  St.  Rep.  619,  2  Ann.  Cas,  557 
(1905);   Young's  Estate,  166  Pa.  645,  31  Atl.  373  (1895). 


TENANCIES   IN   COMMON  181 


III.  Tenancies  in  Common* 


CARVER  V.  FENNIMORE. 

(Supreme  Court  of  Indiana,  1888.    116  Ind.  236,  19  N.  E.  103). 

Appeal  from  circuit  court,  Madison  county ;  D.  Moss,  Judge. 

MiTcHEL,^,  J.  Complaint  by  Esther  J.  Carver  against  Joseph  Fen- 
nimore,  in  which  the  plaintiff  alleged  that  the  defendant  was  indebted 
to  her  in  a  specified  sum  for  the  one-third  of  the  profit,  use,  and  oc- 
cupation of  a  certain  lot  or  tract  of  land  in  the  town  of  Alexandria, 
in  Madison  county.  Issues  were  made  which  were  tried  to  a  jury, 
who  returned  a  verdict  for  the  defendant.  The  questions  for  decision 
will  be  understood  by  the  following  statement  of  facts : 

In  1857,  Ira  K.  Carver,  the  plaintiff's  husband,  was  the  owner  of 
80  acres  of  land  adjoining  the  town  of  Alexandria,  which  he  conveyed 
by  a  deed  of  general  warranty  to  his  brother,  William  Carver.  The 
plaintiff's  name  was  signed  to  the  deed  without  her  knowledge  or 
consent,  and  she  remained  in  ignorance  of  the  conveyance  until  after 
the  death  of  her  husband,  which  occurred  in  April,  1875.  She  then 
learned  of  the  conveyance,  and  that  her  signature  appeared  on  the 
deed,  whereupon,  on  the  26th  day  of  February,  1876,  she  instituted 
a  suit  in  the  Madison  circuit  court  against  William  Carver,  and  about 
20  others,  who  claimed  different  parcels  of  the  land  as  grantees  under 
him,  to  set  aside  the  deed,  for  possession,  and  to  have  the  title  to 
the  land  quieted  in  her.  This  suit  was  pending  in  the  circuit  court 
until  April,  1879,  when  the  plaintiff  recovered  a  judgment  and  decree 
against  all  the  defendants  in  that  suit,  establishing  and  quieting  her 
title  and  right  to  the  immediate  possession  of  the  undivided  one-third 
of  all  the  lands  so  conveyed,  and  for  $125  damages  against  William 
Carver.  An  appeal  was  taken  to  this  court,  where  the  judgment  was 
afterwards  affirmed  on  the  16th  day  of  October,  1884.  Carver  v. 
Carver,  97  Ind.  497.  William  Perry  owned  the  lot  for  the  use  and 
occupation  of  which  the  plaintiff  seeks  to  recover  in  the  present  ac- 
tion, at  the  time  the  suit  above  mentioned  was  commenced,  and  he  was 
duly  summoned  as  a  party  thereto.  Pending  the  suit.  Perry  conveyed 
by  warranty  deed  to  Mrs.  Fadley,  wlio  made  valuable  improvements 
oh  the  lot,  and  who,  subsequently,  in  April,  1880,  while  the  appeal  was 
pending  in  this  court,  conveyed  to  the  appellee,  Fennimore.  At  the 
time  the  suit  for  possession  was  commenced  the  lot  was  unimproved, 
and  the  value  of  the  use  was  merely  nominal. 

The  question  now  is  whether  or  not  Fennimore  is  liable  for  the 
use  and  occupation  of  the  land ;  and,  if  he  is,  whether  or  not  the  rental 

•  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  104. 


182  JOINT   OWXERSHIP    OF    ESTATES 

value  is  to  be  estimated  according  to  the  condition  of  the  land  prior 
and  without  reference  to  the  improvements  placed  thereon  by  his 
grantor,  pending  the  suit,  or  whether  he  must  account  for  the  value 
of  the  use  of  the  land  with  the  improvements.  On  behalf  of  the  ap- 
pellant, it  is  contended  that  the  only  defense  the  appellee  was  legally 
entitled  to  make  was  as  to  the  rental  value  of  the  property  as  it  was 
when  he  had  possession  of  it;  that  the  judgment  and  decree  in  the 
former  case  determined  all  questions  as  to  the  value  of  the  improve- 
ments upon  the  real  estate.  It  may  be  conceded  that  the  former  judg- 
ment and  decree  settled  conclusively  all  questions  concerning  the  own- 
ership of  the  land  and  of  the  title  to  the  improvements  which  had  be- 
come a  part  of  the  freehold,  whether  such  improvements  existed 
thereon  when  the  action  was  commenced,  or  were  made  pending  the 
litigation.  This  concession,  however,  does  not  dispose  of  nor  mate- 
rially affect  the  questions  for  decision  in  the  present  case.  The  ef- 
fect of  the  decree  in  the  former  suit  was  to  declare  and  conclusively 
establish  the  fact  that  the  appellant  was  the  owner  of  an  undivided 
one-third  of  the  property  in  dispute,  and  that  she  was  entitled  to 
occupy, the  legal  relation  of  tenant  in  common  with  those  who  claimed 
title  to  the  lot  under  the  deed  of  her  deceased  husband.  That  ques- 
tion is  no  longer  open  to  debate ;  but  the  rights  and  obligations  of  the 
co-tenants,  as  such,  in  respect  to  the  improvement  or  enjoyment  of 
the  cornmon  estate,  have  not  been  adjudicated. 

The  relation  of  tenant  in  common  arises  "where  two  or  more  per- 
sons are  entitled  to  land  in  such  a  manner  that  they  have  an  undi- 
vided possession,  but  several  freeholds,  i.  e.,  no  one  of  them  is  entitled 
to  the  exclusive  possession  of  any  particular  part  of  the  land,  each 
being  entitled  to  occupy  the  whole  in  common  with  the  others,  or  to  re- 
ceive his  share  of  the  rents  and  profits."  Rap.  &  L.  Law  Diet.  "Ten- 
ancy in  Coinmon."  That  one  tenant  may  exclude  the  other  from,  or 
deny  his  title  to,  the  common  estate  does  not  destroy  the  legal  relation 
or  the  respective  rights  and  remedies  of  co-tenants,  if  they  be  in  fact 
owners  in  common ;  nor  does  a  decree  establishing  and  quieting  the 
title  of  the  excluded  tenant  necessarily  determine  the  rights  of  the_ 
parties  as  regards  an  equitable  accounting  in  an  appropriate  proceeding 
in  respect  to  use  and  occupation,  nor  in  respect  of  improvements 
made  in  good  faith  by  the  occupying  tenant.  Carver  v.  Coffman,  109 
Ind.  547,  ION.  E.  567.  

The  decree  conclusively  establishes  the  fact  of  common  owner- 
ship in  the  property,  but  it  does  not  necessarily  settle  the  equities  be- 
tween the  parties  growing  out  of  the  occupancy  or  improvement  of  the 
common  estate.  Xothwithstanding  the  statute,  (section  288,  Rev.  St. 
1881,)  which  declares  in  efifect  that  a  tenant  in  common  may  maintain 
an  action  against  his  co-tenant  for  receiving  more  than  his  share  or  just 
proportion,  the  settled  rule  is  that  a  co-tenant  can  only  be  compelled 
to  account  in  case  he  has  actually  received  rents  from  a  third  person, 


TENANCIES   IN    COMMON  183 

or  when  he  has  entered  upon  and  held  exclusive  possession  of  the 
whole  estate  in  hostility  to,  and  to  the  exclusion  of,  his  co-tenant. 
Humphries  v,  Davis,  100  Ind.  369,  and  cases  cited ;  Carver  v.  Coff- 
man,  supra,  and  cases  cited;  Osborn  v.  Osborn,  62  Tex.  495;  Edsall 
V.  Merrill,  2>7  N.  J.  Eq.  114;  Early  v.  Friend,  16  Grat.  "(Va.)  21,  78 
Am.  Dec.  649,  and  note;  Kean  v.  Connelly,  25  Minn.  222,  33  Am. 
Rep.  458. 

It  appears  that  the  appellee  and  two  grantors  occupied  the  whole 
estate,  denied  the  right  of  the  appellant,  and  contested  her  claim  to  an 
interest  in  the  common  property.  She  is  therefore  entitled,  within 
the  rule  above  declared,  to  an  accounting  for  her  just  proportion  of  the 
use  and  occupation  of  the  lot  in  controversy.  Freem.  Co-tenancy, 
§§  275,  276.  The  instructions  of  the  court  relevant  to  the  features  of 
the  case  above  considered  were  substantially  in  consonance  with  the 
foregoing  conclusions.  In  refusing  an  instruction  asked  by  the  appel- 
lant, and  in  the  admission  of  evidence,  the  court  proceeded  upon  the 
theory  that  the  liability  of  the  defendant  was  to  be  determined  upon 
the  basis  of  the  rental  value  of  the  property  in  the  condition  it  was 
prior  to  the  making  of  the  improvements  thereon  by  the  occupying 
claimants.  This,  the  appellant  contends,  was  an  erroneous  theory. 
The  action  by  one  co-tenant  against  another  for  an  account  for  rents  y 
is  a  liberal  and  equitable  action,  and  equitable  defenses  may  be  made ; 
and  in  such  a  case,  if  the  excluded  tenant  receives  actual  compensation 
for  the  damages  sustained,  he  has  no  just  ground  of  complaint.  Un- 
less, therefore,  some  peculiar  circumstances  are  shown,  the  owner  of  an 
"undivided  interest  in  land,  who  occupies  the  whole  estate  in  good  faith, 
under  claim  and  color  of  title  to  the  whole,  and  has  made  permanent 
and  valuable  improvements  under  the  mistaken  belief  that  he  is  the 
owner  of  the  whole  estate,  is  accountable  only  for  the  fair  rental  value 
of  the  property  in  the  condition  in  which  it  was  when  it  went  into  his 
possession.  The  excluded  owner  or  tenant  is  not,  under  ordinary 
circumstances,  entitled  to  the  enhanced  rental  value  resulting  from  the 
improvements  made  with  the  capital  of  the  bona  fide  occupant,  or  by 
his  grantor  from  whom  he  purchased.  Morrison  v.  Robinson,  31  Pa. 
456;   Pickering  v.  Pickering,  63  N.  H.  468,  3  Atl.  744. 

This  rule  is  in  analogy  to  that  prescribed  by  the  statute  governing 
the  rights  and  liabilities  of  occupying  claimants,  and  has,  besides,  the 
support  of  reason  and  authority.  White  v.  Stuart,  76  Va.  546-567; 
Early  v.  Friend,  supra.  The  defendant  and  his  grantor  who  made 
the  improvements  went  into  possession  of  the  whole  lot  under  a  duly 
acknowledged  and  recorded  deed,  to  which  the  plaintiff's  name,  as 
well  as  that  of  her  husband,  appeared  to  have  been  signed.  It  turned 
out  that  the  plaintiff's  signature  thereto  was  without  authority,  and  . 
the  persons  in  possession  were  the  owners  of  only  an  undivided  two- 
thirds  of  the  property,  after  the  death  of  the  husband.  It  could  hardly 
have  been  expected  that  they  would  surrender  the  whole  lot  upon 


184  JOINT   OWNERSHIP    OP    ESTATES 

the  institution  of  the  suit  by  the  plaintiff,  notwithstanding  the  deed 
from  Ira  K.  Carver  and  wife,  which  appeared  to  have  been  made  in 
1857;  nor  were  they  bound  to  leave  the  property  lying  idle,  unpro- 
ductive, and  unimproved,  and  take  the  chance  of  paying  an  enhanced 
value  for  the  improvements  which  resulted  from  their  own  enterprise. 
Ford  V.  Knapp,  102  N.  Y.  135,  6  N.  E.  283,  55  Am.  Rep.  782.  This 
results  in  no  injustice  to  the  plaintiff,  while  to  adopt  the  measure  of 
damages  contended  for  would  be  inequitable  and  injurious  to  the  de- 
fendant. 

While  a  tenant  in  common  who  disseizes  his  co-tenant  and  makes 
improvements  on  the  common  estate  may  not  be  entitled  to  compen- 
sation for  improvements  so  made,  he  is  nevertheless  entitled  to  have 
them  considered  when  called  to  account  in  an  equitable  action  for 
rents  and  profits.  There  are  no  circumstances  disclosed  in  the  pres- 
ent case  which  equitably  entitle  the  appellant  to  the  rental  value  of 
the  land  with  the  improvements.  What  the  rights  of  the  parties  may 
be  in  respect  to  the  improvements  in  any  other  proceeding  than  the 
present  is  not  here  considered  or  determined. 

These  considerations  lead  to  an  affirmance  of  the  judgment.  Judg- 
ment affirmed,  with  costs.  ""^ 


IV.  Partition* 


See  Canfield  v.  Ford,  ante,  p.  5. 


V.  Community  Property  ^ 


BARNETT  v.  BARNETT. 

(Supreme  Court  of  New  Mexico,  1897.     9  N.  M.  205,  50  Pac.  337). 

Appeal  from  district  court,  Bernalillo  county;  before  Justice  N.  C. 
Collier. 

Bill  by  Bessie  Barnett  against  Joseph  Barnett.  From  a  decree  in 
favor  of  plaintiff,  defendant  appeals.     Reversed. 

This  is  a  mit-brought  by  Bessie  Barnett  against  Joseph  Barnett  for 
a  partition  or  division,  of  all  real  and  personal  property  standing  in 
the  name  of  or  owned  by  appellant,  and  alleged  to  be  community  prop- 
erty, and  acquired  during  the  marriage  relation  formerly  existing 
between  the  said  parties.  The  said  appellant  procured  a  divorce  from 
appellee  on  the  5th  day  of  November,  1894,  and  this  suit  was  brought 

8  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  108. 
1  For  discussion  of  principles,  see  Burdiclc,  Real  Prop.  §  109. 


COMMUNITY   PEOPERTY  185 

on  the  13th  day  of  January,  1896.  Said  bill  of  complaint  alleges  that 
appellant  and  appellee  were  married  on  or  about  the  10th  day  of 
August,  1891 ;  that,  at  the  time  they  were  married,  the  appellant  pos- 
sessed and  owned  no  property  by  inheritance,  donation,  or  legacy  dur- 
ing the  existence  of  the  marriage  community,  but  that  they  did  acquire 
a  large  amount  of  property,  both  real  and  personal,  by  their  joint  and 
separate  efforts  and  labors,  as  set  forth  and  described  in  the  bill  of 
complaint,  and  alleges  that  all  said  property  is  acquest  and  community 
property,  and  that  appellee  is  entitled  to  one-half  interest  in  and  to  the 
same.  Appellant  filed  a  demurrer  to  the  said  bill,  which  was  over- 
ruled, and  thereafter  appellant  filed  an  answer,  and  referred  to  and 
made  the  pleadings  in  the  divorce  suit  a  part  thereof,  and  denied  that 
the  appellee  was  entitled  to  any  interest  in  either  the  real  or  personal 
property.^     *     *     * 

Smith,  C.  J.  (after  stating  the  facts)."  It  will  not  be  contended 
that  the  appellee  became  vested  with  any  separate  interest  under  the 
common  law  in  the  property  of  the  appellant  acquired  during  their 
coverture,  and  it  is  not  less  assured  that  there  is  no  provision  made 
for  her  during  his  life  as  to  such  property  by  any  statute  of  the  ter- 
ritory. Chapter  90  of  the  Acts  of  1889  is  "An  act  to  amend  the  laws 
relative  to  the  estates  of  deceased  persons,"  and  directs  that  "one  half 
of  the  acquest  property  which  remains  after  the  payment  of  the  com- 
mon debt  shall  be  set  apart  to  the  surviving  husband  or  wife  absolute- 
ly." It  is  manifest  that  this  distribution  is  derived  from  the  Spanish 
law,  and  it  may  be  that  the  limitation  as  to  the  time  of  the  operation 
was  suggested  by  the  same  code.  It  is  consequential,  therefore,  that, 
if  any  laws  have  obtained  here  disposing  (during  the  life  of  husband 
and  wife)  of  the  property  accumulated  by  them  during  the  continuance 
of  their  marriage  relation,  they  are  those  of  Spain  and  Mexico,  as  they 
existed,  concerning  descents,  distributions,  wills,  and  testaments, 
when  this  territory  became  a  part  of  the  United  States. 

In  1846  the  following  announcements  were  promulgated  by  Kear- 
ney in  his  Code :  Kearney's  Code,  p.  82,  §  1  (September  22,  1846) : 
"All  laws  heretofore  in  force  in  this  territory,  which  are  not  repug- 
nant to  or  inconsistent  with  the  constitution  of  the  United  States,  and 
the  laws  thereof,  or  the  statute  laws  in  force  for  the  time  being,  shall 
be  the  rule  of  action  and  decision  in  this  territory."  Kearney's  Code, 
Pamph.  p.  35,  §  1  (September  22,  1846) :  "The  laws  heretofore  in 
force  concerning  descents,  distributions,  wills  and  testaments,  as  con- 
tained in  the  treatises  on  these  subjects  written  by  Pedro  Murillo 
De  Lorde  (Velarde),  shall  remain  in  force  so  far  as  they  are  in  con- 
formity with  the  constitution  of  the  United  States  and  the  state  laws 
in  force  for  the  time  being." 

The  following,  as  to  the  foregoing,  was  duly  enacted  and  incorpo- 

«  Part  of  the  statement  of  facts  is  omitted. 
•  Part  of  ttie  opinion  is  omitted. 


186  JOINT  OWNERSHIP    OF    ESTATES 

rated  in  the  Compiled  Laws  of  1865  (Act  July  14,  1851,  Pamph.  p. 
176,  §  6):  "That  all  laws  that  have  previously  been  in  force  in  this 
territory  that  are  not  repugnant  to,  or  inconsistent  with  the  con- 
stitution of  the  United  States,  the  organic  law  of  this  territory,  or  any 
act  passed  at  the  present  session  of  the  legislative  assembly,  shall  be 
and  continue  in  force,  excepting  in  Kearney's  Code  the  law  con- 
cerning registers  of  land."  Section  1,  as  above,  of  the  Compiled  Laws 
of  1865,  is  repeated  in  the  Compiled  Laws  of  1884,  as  section  1365,  as 
below :  "Sec.  1365.  The  laws  heretofore  in  force  concerning  descents, 
distributions,  wills  and  testaments,  as  contained  in  the  treatises  on 
these  subjects  written  by  Pedro  Murillo  De  Lorde  (Velarde),  shall  re- 
main in  force  so  far  as  they  are  in  conformity  with  the  constitution 
of  the  United  States  and  the  state  laws  in  force  for  the  time  being." 

This  sequence  of  proceeding,  and  the  absence  of  other  legislation  on 
the  subject  until  1887,  establish  that  the  civil  law  as  to  descents,  dis- 
tributions, wills,  and  testaments  obtained  here  in  1846,  and  prevailed 
continuously  unmodified  to  the  time  of  the  passage  of  the  "Act  regu- 
lating descents  and  the  apportionment  of  estates,"  approved  February 
24,  1887,  and  in  force  from  its  passage.  This  statute  expressly  re- 
pealed all  laws  in  force  contravening  its  provisions,  but  it  does  not 
positively  or  by  implication  affect  during  the  lives  of  husband  and 
and  wife  the  acquest  property,  or  direct  its  disposition  until  the  death 
of  either.  An  act  that  became  a  law  February  26,  1889,  supersedes  the 
statute  of  1887,  above  cited,  but  is  likewise  silent  as  to  acquest  prop- 
erty as  long  as  the  members  of  the  marital  partnership  are  both  alive, 
though  divorced.  In  1891,  section  1365  of  the  Compiled  Laws  of 
1884  was  repealed  as  follows :  "Be  it  enacted  by  the  legislative  as- 
sembly of  the  territory  of  New  Mexico:  Section  1.  That  section  1365 
of  the  Compiled  Laws  of  the  Territory  of  New  Mexico  of  1884,  re- 
/lating  to  administrations,  be  and  the  same  is  hereby  repealed." 

Notwithstanding  the  inaptness  of  the  phraseology  of  the  above  act, 
we  will  presume  that  its  object  was  to  repeal  section  1365,  and  will 
consider  it  as  though  such  effect  were  indisputable.  If  the  laws  con- 
cerning descents,  distributions,  wills,  and  testaments  contained  in  the 
treatises  on  these  subjects  written  by  Pedro  Murillo  Velarde  are  not 
now  in  force,  to  the  extent  that  they  are  not  positively  supplanted,  the 
conclusion  that  there  is  not  extant  in  the  territory  any  provision  as  to 
the  rights  of  husband  and  wife,  while  both  are  alive,  to  acquest  prop- 
erty, is  irresistible.  The  common  law  recognizes  no  interest  in  the 
wife  during  coverture  because  of  separation.  Our  statutes  are  equally 
,*'deficient  as  to  such  status,  and  inevitably  the  defendant  in  error  is  re- 
manded to  the  civil  law  for  protection,  if  she  is  worthy  of  it. 

We  will  now  inquire  whetlier  the  civil  law  as  to  acquest  property 

during  the  lives  of  the  parties  who  have  contracted  marriage,  and  been 

divorced,  has  been  abolished  in  New  Mexico.    It  is  a  recognized  tenet 

.of  international  law  that,  in  the  annexation  of  new  territory,  its  juris- 


COMMUNITY   PROPERTY  187 

prudence  as  to  rights — not  political  in  character— of  its  people  are  ac- 
quTred  with  it,  and  remain  in  force  until  substituted  by  action  of  the 
new  sovereignty.  Says  Chief  Justice  Marshall,  in  Insurance  Co.  v. 
Canter,  1  Pet.  544,  7  L.  Ed.  242:  "It  has  been  already  stated  that 
all  the  laws  which  were  in  force  in  Florida  while  a  province  of  Spain, 
those  excepted  which  were  political  in  their  character,  which  concern- 
ed the  relations  between  the  people  and  their  sovereign,  remained  in 
force,  until  altered  by  the  government  of  the  United  States.  Con- 
gress recognizes  this  principle,  by  using  the  words  'laws  of  the  terri- 
tory now  in  force  therein.'  No  laws  could  then  have  been  in  force 
but  those  enacted  by  the  Spanish  government."  The  same  illustrious 
expounder,  in  U.  S.  v.  Percheman,  7  Pet.  82,  8  L.  Ed,  604,  declares 
that  "the  people  change  their  allegiance;  their  relation  to  their  ancient 
sovereign  is  dissolved;  but  their  relations  to  each  other,  and  their 
rights  of  property,  remain  undisturbed."  In  Mitchel  v.  U.  S.,  9  Pet. 
'729,  9  L.  Ed.  283,  Mr.  Justice  Baldwin,  delivering  the  opinion,  an- 
nounced "that,  by  the  law  of  nations,  the  inhabitants,  citizens,  or  sub- 
jects of  a  conquered  or  ceded  country,  territory,  or  province  retain 
all  the  rights  of  property  which  have  not  been  taken  from  them  by 
the  orders  of  the  conquerer,  or  the  laws  of  the  sovereign  who  acquires 
it  by  cession,  and  remain  under  their  former  laws  until  they  shall  be 
changed." 

Mr.  Justice  Field,  in  Railway  Co.  v.  McGlinn,  114  U.  S.  546,  5  Sup. 
Ct.  1006,  29  L.  Ed.  270,  elaborates  as  follows :  "It  is  a  general  rule  of 
public  law,  recognized  and  acted  upon  by  the  United  States,  that, 
whenever  political  jurisdiction  and  legislative  power  over  any  terri- 
tory are  transferred  from  one  nation  or  sovereign  to  another,  the  mu- 
nicipal laws  of  the  countiy — that  is,  laws  which  are  intended  for  the 
protection  of  private  rights — continue  in  force  until  abrogated  or 
changed  by  the  new  government  or  sovereign.  By  the  cession,  public 
property  passes  from  one  government  to  the  other,  but  private  prop- 
erty remains  as  before,  and  with  it  those  municipal  laws  which  are 
designed  to  secure  its  peaceful  use  and  enjoyment.  As  a  matter  of 
course,  all  laws,  ordinances,  and  regulations  in  conflict  with  the  political 
character,  institutions,  and  constitution  of  the  new  government  are 
at  once  displaced.  Thus,  upon  a  cession  of  political  jurisdiction  and 
legislative  power  (and  the  latter  is  involved  in  the  former)  to  the 
United  States,  the  laws  of  the  country  in  support  of  an  established 
religion,  or  abridging  the  freedom  of  the  press,  or  authorizing  cruel 
and  unusual  punishments,  and  the  like,  would  at  once  cease  to  be  of 
obligatory  force  without  any  declaration  to  that  effect;  and  the  laws 
of  the  country  on  other  subjects  would  necessarily  be  superseded  by 
existing  laws  of  the  new  government  upon  the  same  matters.  But 
with  respect  to  other  laws  affecting  the  possession,  use,  and  transfer 
of  property,  and  designed  to  secure  good  order  and  peace  in  the  com- 
munity, and  promote  its  health  and  prosperity  which  are  strictly  of  a 


188  JOINT   OWNERSHIP    OF    ESTATES 

municipal  character,  the  rule  is  general  that  a  change  of  government 
leaves  them  in  force  until,  by  direct  action  of  the  new  government, 
they  are  altered  or  repealed." 

That  no  statute  of  this  territory — either  that  adopting  the  common 
law  as  the  rule  of  practice  and  decision,  or  that  relative  to  the  es- 
tates of  deceased  persons,  or  any  other  enactment — ascertains  the 
rights  of  husband  and  wife  after  legitimate  separation,  and  during 
the  lives  of  both,  to  the  property  of  which  they  became  possessed  dur- 
ing coverture,  has  been  shown;  that  a  casus  omissus  has  thus  event- 
uated will  be  recognized;  that  any  change  of  the  Spanish  law  as  to 
the  acquest  property  under  the  foregoing  status  has  been  made  can- 
not be  seriously  pretended ;  and  that  the  foregoing  authorities  decisive- 
ly establish  that,  in  such  contingency,  the  law  upon  the  subject  in 
operation  at  the  date  of  the  cession  of  the  territory  must  prevail,  should 
be  unhesitatingly  admitted.  "Under  the  Spanish  and  Mexican  law, 
property  acquired  by  the  husband  and  wife  during  the  marriage,  and 
whilst  living  together,  whether  by  onerous  or  lucrative  title,  and  that 
acquired  by  either  of  them  by  onerous  title,  belonged  to  the  com- 
munity; whilst  property  acquired  by  either  by  lucrative  title  solely 
constituted  the  separate  property  of  the  party  making  the  acquisition. 
The  fruits,  profits,  and  increase  of  the  separate  property  also  belonged 
to  the  community.  By  'onerous  title'  was  meant  that  which  was  cre- 
ated by  valuable  consideration,  as  the  payment  of  money,  the  rendition 
of  services,  and  the  like,  or  by  the  performance  of  conditions  or  pay- 
ment of  charges  to  which  the  property  was  subject.  'Lucrative  title' 
was  created  by  donation,  devise,  or  descent."  Piatt,  Prop.  Rights 
Mar.  Wom.  §  7.  "The  wife,  under  the  Mexican  law,  was  clothed  with 
the  revocable  and  feigned  dominion  and  possession  of  one-half  of  the 
property  acquired  by  her  and  her  husband  during  the  coverture.  Dur- 
ing this  period  the  husband  is  the  head  of  the  community,  and  the  law 
invests  him  with  discretionary  power  in  all  matters  pertaining  to  its 
business  or  property.  In  fact,  its  business  is  conducted  and  its  prop- 
erty acquired  in  his  name,  and  his  authority  in  the  administration  of 
its  affairs  is  exclusive  and  absolute.  The  wife  has  no  voice  in  the 
management  of  these  affairs,  nor  has  she  any  vested  or  tangible  in- 
terest in  the  community  property.  The  title  to  such  property  vests  in 
the  husband,  and  for  all  practical  purposes  he  is  regarded  by  the 
law  as  the  sole  owner.  It  is  true,  the  wife  is  a  member  of  the  com- 
munity, and  is  entitled  to  an  equal  share  of  the  acquests  and  gains,  but 
not  so  long  as  the  community  exists ;  her  interest  is  a  mere  expectancy, 
like  that  which  an  heir  possesses  in  the  estate  of  an  ancestor,  and  pos- 
sesses none  of  the  attributes  of  an  estate,  either  at  law  or  equity." 
Id.  §  38. 

It  cannot  be  that  the  wife,  being  subordinate  during  coverture,  be- 
comes an  equal,  with  equal  rights  as  a  feme  sole  to  the  property. 
Powerless  during  marriage,  she  must  be  devested  absolutely  by  di- 


COMMUNITY   PROPERTY  189 

vorce, — a  termination  of  the  marital  rights  in  relation  to  the  communi- 
typroperty.  It  appears  in  "Practico  de  Testamento,"  published  by 
Pedro  Murillo  De  Velarde,  as  follows :  "Sec.  12.  Of  the  Surviving 
Consort.  To  the  surviving  consort  the  laws  have  conceded  a  certain 
right  in  the  property  of  his  consort,  and  at  the  same  time  have  im- 
posed upon  him  certain  obligations,  which  it  has  seemed  convenient 
to  collect  and  explain  in  this  section.  First.  The  surviving  consort 
has  a  right  to  the  half  of  the  ganancial  (1)  property  acquired  during 
matrimony.  This  right  is  based  on  the  community  or  legal  partner- 
ship existing  between  those  married,  as  the  civil  effect  of  the  marriage. 
It  does  not  hold  in  case  of  divorce,  because  the  consort  who  gave  cause 
therefor  loses  the  right  to  the  ganancial  property;  nor  in  case  of 
apostasy  of  either  of  them ;  and  although,  by  ancient  law,  it  was  lost 
through  the  crime  of  treason,  the  penalty  of  confiscation,  which  fol- 
lowed from  it,  and  was  the  cause  of  that  loss,  being  abolished  by  our 
constitutional  law,  the  right  subsists.  The  widow  who  lives  unchastely 
also  loses  it,  in  favor  of  the  heirs  of  her  husband." 

Says  Ballinger  in  his  treatise  on  Community  Property :  "Upon  the 
dissolution  of  the  community  by  death  or  legal  separation,  the  ganan- 
cias  are  to  be  divided  equally."  Says  the  same  author :  "The  wife  for- 
feits her  matrimonial  gains  when  she  has  been  guilty  of  adultery  or 
abandoned  her  husband  without  his  consent."  Says  Schmidt  in  his 
publication  of  the  law  of  Spain  and  Mexico,  in  article  68:  "The  wife 
loses  her  matrimonial  gains  in  the  following  cases:  (1)  When  she 
has  been  guilty  of  adultery ;  (2)  when  she  has  abandoned  her  husband 
without  his  consent;  (3)  when  she  has  joined  some  religious  sect, 
and  then  married  or  committed  adultery."  Says  Hall  in  his  work  on 
Mexican  Law  (section  3081),  in  specifying  those  incapable  of  acquir- 
ing because  of  crime:  "(4)  The  wife  condemned  as  an  adultress  in  the 
life  of  her  husband,  if  the  question  shall  be  of  the  succession  of  the 
legitimate  children  had  by  the  marriage  in  which  she  committed  the 
adultery." 

It  is  apparent  that  the  civil  law  is  emphatic  in  its  condemnation  of 
the  crime  of  adultery  by  the  wife ;  that  it  is  condign  in  the  severity 
of  its  punishment  for  such  an  offense;  and  that  the  defendant  in  er- 
ror must  be  one  of  the  victims  of  its  policy.  That  there  has  been  no 
modification  in  the  Spanish  code  of  the  requirement  of  fidelity  by  the 
woman  in  the  marital  relation,  nor  any  abatement  of  the  penalty  im- 
posed upon  her  for  her  dissoluteness,  must  be  commended ;  but  that  it 
should  be  less  exacting  of  the  husband,  and  less  proscriptive  of  him  for 
his  unchastity,  seems  a  reproach  that  cannot  be  too  vigorously  denounc- 
ed. That  men,  the  lawmakers,  should  impose  upon  the  other  sex  penal- 
ties for  their  misdeeds  greater  than  those  they  attach  to  themselves  for 
similar  misconduct,  is  a  gross  prostitution  of  power,  and  a  flagrant  per- 
petration of  a  wrong  that  is  a  shame  to  them,  and  most  pernicious  in  its 
demoralizing  effects  upon  society.     They  who  arrogate  to  themselves  su- 


190  JOINT   OWNERSHIP    OF    ESTATES 

periority,  and  assume  to  manufacture  public  sentiment,  should  not  only 
refrain  from  invidious  discrimination  against  women  for  the  violation 
of  their  marital  obligations,  but  should  so  exalt  the  standard  of  moral- 
ity by  scrupulous  propriety  and  abstinence  from  impurity  as  husbands 
that  they  could,  by  example,  demand  fidelity  from  their  wives.  If  men 
were  constrained  to  purity  in  fealty  to  those  to  whom  they  have 
pledged  themselves,  the  latter,  in  appreciative  devotion,  would  be  un- 
yielding to  temptation,  and  the  relation  of  matrimony  no  longer  a 
partnership  increasing  in  frequency  of  dissolution. 

We  realize  that  we  might  have  forborne  the  foregoing  investiga- 
tion, as  we  do  not  doubt  that  the  plaintiff  in  error  is  impregnable  in 
his  defense  of  res  adjudicata,  but  we  have  deemed  it  due  to  counsel 
to  consider  with  care  their  respective  contentions.  It  is  wisdom  that 
forbids  the  multiplication  of  litigation  on  the  same  subject,  and  spares 
suitors  needless  vexation  in  the  determination  of  their  rights.  The 
parties  to  this  controversy,  having  been  separated  by  final  decree  of 
a  court  of  competent  jurisdiction,  are  estopped  from  further  harassing 
each  other  as  consorts  in  any  other  tribunal.  The  marital  status  hav- 
ing ceased  absolutely,  no  rights  which  accrued  in  or  by  virtue  of  such 
relation,  and  were  not  asserted  in  the  proceedings  for  dissolution,  can 
be  subsequently  maintained.  An  absolute  divorce,  or  a  divorce  a  vin- 
culo matrimonii,  or  from  the  bonds  of  marriage,  absolutely  dissolves 
all  marriage  ties,  and  destroys  the  relation  of  husband  and  wife.  After 
the  date  of  the  decree  the  man  has  no  wife,  the  woman  no  husband. 
The  woman  is  a  feme  sole.  A  decree  which  dissolves  the  marriage  ab- 
solutely, and  destroys  the  marriage  status,  puts  an  end  to  all  rights 
dependent  upon  coverture.  After  such  a  decree,  the  court  has  no  ju- 
risdiction over  the  parties,  and  the  suit  is  no  longer  pending.  When 
the  court  has  entered  the  final  decree,  it  has  no  further  jurisdiction 
over  the  subject-matter,  and  cannot  reassume  it.     *     *     * 


CONDITIONAL    OR    QUALIFIED    ESTATES  191 


CONDITIONAL  OR  QUALIFIED  ESTATES 
I.  Estates  upon  Condition  ^ 


FRANK  V.  STRATFORD-HANDCOCK. 

(Supreme  Court  of  Wyoming.  1904.    13  Wyo.  37.  77  Pac.  134,  67  L.  R.  A.  571, 

110  Am.  St.  Rep.  9G3.) 

Error  to  District  Court,  Crook  County ;  Richard  H.  Scott,  Judge. 

Action  by  S.  Henrietta  Carlile-Kent  against  Abe  Frank  and  Grace 
E.  McKenzie.  There  was  a  judgment  for  plaintiff  and  defendants 
brought  error.  Since  the  submission  of  the  cause,  defendant  in  error 
died,  and  Claude  Stratford-Handcock,  executor,  and  Mabel  Stratford- 
Handcock,  executrix  and  devisee,  of  her  estate,  were  substituted.  Re- 
versed. 

'^Potter,  J.^  S.  Henrietta  Carlile-Kent  sued  the  plaintiffs  in  error, 
Abe  Frank  and  Grace  E.  McKenzie,  for  the  specific  performance  of 
an  alleged  contract  for  the  conveyance  of  certain  lands  situated  in 
Crook  county,  entered  into  by  Frank,  the  grantor  of  Mrs.  McKenzie, 
and  damages  for  taking  and  withholding  possession  of  the  premises. 
The  allegations  of  the  first  cause  of  action  are  substantially  that  on 
April  4,  1901,  Frank  was  the  owner  of  the  lands,  and  on  that  date 
entered  into  a  written  agreement  with  plaintiff,  which  is  set  out  in 
haec  verba;  that  thereafter,  and  on  the  same  day,  plaintiff  went  into 
possession  of  the  premises  under  the  terms  of  the  agreement,  and  re- 
mained in  possession  until  July  26,  1901,  when  Mrs.  McKenzie  forcibly 
and  wrongfully  evicted  her;  that  on  September  20,  1901,  plaintiff  ten- 
dered the  purchase  price  to  defendant  Frank,  and  demanded  a  deed, 
which  was  refused;  that  plaintiff  has  duly  performed  all  the  condi- 
tions of  the  agreement  on  her  part  to  be  performed,  and  brings  the 
purchase  price  into  court,  and  offers  it  to  defendant  Frank,  upon  his 
executing  and  delivering  a  conveyance  according  to  the  contract;  and 
that  on  April  17,  1901,  Frank  wrongfully  sold  and  conveyed  the  prem- 
ises to  the  defendant  McKenzie,  who  had  full  knowledge  of  the  agree- 
ment between  the  plaintiff  and  Frank.  The  second  cause  of  action 
is  based  upon  the  alleged  wrongful  eviction  of  plaintiff  and  the  with- 
holding of  possession,  and  charges  that  the  same  occurred  under  the 
direction  of  the  defendant  Frank,  and  there  are  certain  averments  of 
special  damages. 

The  agreement  set  out  in  the  petition,  and  which  was  introduced 
in  evidence,  is  in  form  a  lease  for  the  period  of  six  months  from  April 

1  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  111-114. 

2  Part  of  the  opinion  is  omitted. 


192  CONDITIONAL    OR    QUALIFIED    ESTATES 

1st,  containing  a  clause  giving  the  lessee,  the  plaintiff  below,  the  right 
to  purchase  the  premises  at  any  time  within  said  six  months  upon  the 
payment  of  $5,000,  with  interest  at  the  rate  of  8  per  cent,  per  annum. 
The  alleged  right  to  specific  performance  is  based  on  that  clause.  The 
plaintiff,  as  lessee,  covenanted  to  pay  as  rental  the  taxes  on  the  prem- 
ises for  the  current  year,  1901,  to  have  the  fences  and  buildings  in 
good  repair,  and  not  to  pasture  upon  a  certain  portion  of  the  land, 
designated  as  "the  bottom  pasture,"  to  exceed  ten  head  of  saddle  and 
work  horses  and  two  milch  cows.  It  was  agreed  that  she  should  have 
full  use  of  "back  pasture"  for  her  own  stock,  and  that  she  should  not 
have  the  right  to  turn  stock  upon  the  hay  meadows,  nor  be  allowed  to 
pasture  upon  certain  specified  "ranches."  It  was  also  agreed  that,  in 
the  event  she  should  not  purchase  the  premises  within  the  time  grant- 
ed, one-half  of  the  hay  crop  and  one-third  of  the  other  crops  raised 
on  the  land  should  belong  to  the  lessor,  Frank.  The  lease  then  con- 
cludes with  the  following  provision:  "It  is  further  agreed  that  the 
party  of  the  second  part  [the  lessee]  shall  deposit  with  the  party  of  the 
first  part  the  sum  of  five  hundred  dollars  for  the  faithful  performance 
of  this  lease  and  the  payment  of  the  taxes  as  aforesaid."  The  paper 
is  signed  by  both  parties. 

The  answer  not  only  denied  the  allegations  of  the  petition  as  to 
the  eviction  of  plaintiff,  but  averred  that  the  latter  had  voluntarily  de- 
livered possession  to  the  defendant  McKenzie.  There  was  some  con- 
flict of  evidence  on  that  issue,  and  the  trial  court  determined  it  in 
favor  of  the  plaintiff,  expressly  finding  that  on  July  26,  1901,  Mrs. 
McKenzie,  with  the  consent  and  connivance  of  the  defendant  Frank, 
took  possession  of  the  premises  against  plaintiff's  consent,  and  con- 
tinued to  withhold  possession,  and  that  plaintiff  never  voluntarily  sur- 
rendered it.  The  point  of  conflict  in  the  testimony  was  as  to  whether 
or  not  the  plaintiff  had  voluntarily  surrendered  possession.  Upon 
that  question  the  finding  of  the  trial  court  will  be  accepted,  and,  so 
far  as  material,  the  fact  will  be  considered  as  established  that  Mrs. 
McKenzie  took  possession  of  the  premises  against  plaintiff's  consent. 
It  is  not  denied  that  she  continued  in  possession.  In  the  view  we  are 
constrained  to  take  of  the  case  under  the  issues  and  proof:  Frank's 
alleged  connection  with  the  act  of  Mrs.  McKenzie  in  taking  possession 
may  not  become  material ;  but  we  deem  it  proper  to  say  that  the  evi- 
dence totally  failed  to  connect  him  with  that  act  in  any  way,  unless 
the  fact  that  he  had  previously  conveyed  the  land  ought  to  be  given 
that  effect,  which  is  at  least  doubtful.  There  is  not  the  slightest  evi- 
<lence,  outside  the  mere  fact  of  his  conveyance,  that  Frank  either  con- 
sented to  or  aided  in  the  act  of  taking  possession,  or  that  he  even  knew 
of  it  until  after  it  had  occurred. 

The  remaining  material  averments  of  the  answer  are  in  substance 
and  effect  that  the  privilege  given  to  the  plaintiff  to  purchase  the 
premises  was  without  consideration,  that  there  was  lack  of  mutuality 
in  the  contract  for  the  sale,  and  that  the  lease  never  became  operative. 


ESTATES   UPON   CONDITION  193 

for  the  reason  that  plaintiff  (the  lessee)  failed  to  make  the  deposit  / 
required  by  the  contract  for  her  faithful  performance  of  the  lease  and 
the  payment  of  the  taxes,  which  it  is  alleged  was  a  condition  precedent 
to  the  acquirement  of  any  right  by  the  plaintiff  under  the  lease,  l^e 
reply  met  these  averments,  first,  by  a  general  denial ;  second,  by  alleg- 
ing that  the  defendant  Frank  never  demanded  that  the  $500  mentioned 
in  the  agreement  be  deposited  with  him;  and,  third,  that  said  Frank 
never  demanded  of  the  plaintiff  that  she  comply  with  any  or  all  the 
terms  of  the  agreement,  and  never  notified  plaintiff  that  she  had  violat- 
ed any  of  such  terms.  The  case  was  tried  to  the  court  on  all  the  issues, 
and  there  was  a  separate  statement  of  the  conclusions  of  fact  and 
law.    *    *    * 

Now,  in  the  case  at  bar,  the  optional  agreement  does  not  recite  a 
consideration;  but  it  is  contained  in  a  written  contract  signed  by  the 
parties,  and  it  is  maintained  on  the  part  of  defendants  in  error  that 
the  contract  being  a  lease  of  the  premises  constituted  a  sufficient  con- 
sideration for  the  agreement  to  convey,  and  it  seems  to  be  relied  on 
as  the  sole  consideration.  On  the  other  hand,  it  is  contended  that 
the  contract  never  took  effect  or  became  operative  as  a  lease,  or  for 
any  other  purpose,  for  the  reason  that  the  plaintiff  neglected  to  per- 
form a  condition  precedent  to  its  operation,  viz.,  the  agreement  to 
deposit  $500  as  security  for  her  faithful  performance  of  the  lease  and 
the  payment  of  the  taxes.  Hence  it  is  insisted  that  the  paper  did  not 
amount  to  a  lease,  and  could  not,  therefore,  be  regarded  as  a  proper 
consideration  for  the  optional  agreement,  and  that  the  lessor,  Frank, 
revoked  the  agreement  by  the  sale  and  conveyance  of  the  premises  to 
his  codefendant,  Mrs.  McKenzie,  which  fact  was  brought  to  the  knowl- 
edge of  the  plaintiff  shortly  thereafter,  and  before  any  acceptance  on 
her  part  of  the  privilege  of  purchase.  It  becomes  important,  therefore, 
to  consider  the  character  of  the  agreement  to  make  the  deposit,  and 
whether  the  failure  to  do  so  rendered  the  lease  ineffective.  There  is 
no  dispute  upon  the  facts  as  to  the  deposit.  It  was  neither  made  nor 
offered  at  any  time ;  but,  on  the  contrary,  the  plaintiff  stated,  after 
her  eviction,  and  when  her  attention  was  called  to  her  neglect  to  com- 
ply with  her  agreement  to  secure  her  performance  of  the  terms  of  the 
lease  by  making  a  deposit  of  $500,  that  she  repudiated  that  part  of  the 
contract. 

^^^nditions  precedent  are  to  be  strictly  complied  with.  Such  a  con- 
ditioiTTsone  that  must  happen  or  be  performed  before  the  estate  de- 
pendent upon  it  can  arise  or  be  enlarged,  while  a  condition  subsequent 
defeats  the  estate  in  case  it  does  not  happen  or  is  not  performed.  In 
determining  whether  a  particular  provision  amounts  to  a  condition  or 
not,  the  rule  is  that  the  intention  of  the  grantor  governs.  Such  inten- 
tion is  to  be  gathered  from  the  whole  instrument  and  the  existing  facts. 
The  authorities  lay  down  the  principle  that  whether  a  condition  is  pre- 
cedent or  subsequent  depends  upon  the  intent  of  the  parties,  as  collected 
Burd.Cas.Real  Prop. — 13 


194  CONDITIONAL    OR    QUALIFIED    ESTATES 

from  the  whole  contract,  whatever  the  order  in  which  they  are  found, 
or  the  manner  in  which  they  are  expressed,  although  certain  words 
are  customary  when  a  condition  rather  than  a  covenant  is  intended. 
But  it  seems  that  the  same  words  may  be  employed  to  create  either  a 
covenant  or  a  condition.  The  words  employed  in  the  beginning  of  the 
instrument  are  W'ords  of  present  demise.  It  reads :  "This  article  of 
agreement,  made  and  entered  into  this  4th  day  of  April,  1901,  by  and 
between  Abe  Frank,  party  of  the  first  part,  and  S.  Henrietta  Carlile- 
Kent,  party  of  the  second  part,  witnesseth:  That  the  party  of  the 
first  part  has  this  day  leased  to  the  party  of  the  second  part  the  follow- 
ing described  lands  [description]  for  a  term  of  six  months  from  April 
1,  1901,  and  the  party  of  the  second  part  agrees  to  pay  as  rental  of  said 
premises  the  taxes  on  the  same  for  the  current  year  1901."  Then 
follows  the  clause  giving  the  privilege  of  purchase,  and  following  that 
are  the  other  agreements  as  to  tl^e  use  of  the  premises,  and  the  instru- 
ment then  concludes  with  the  agreement  for  the  deposit  that  is  quoted 
in  an  earlier  part  of  this  opinion. 

The  deposit  was  required  for  a  specified  purpose,  viz.,  to  secure  the 
faithful  performance  by  plaintiff,  the  lessee,  of  the  lease,  and  the  pay- 
ment of  the  taxes.  She  had  agreed  to  keep  the  fences  and  buildings  in 
repair,  to  refrain  from  pasturing  stock  upon  certain  designated  lands, 
and  to  limit  her  use  of  the  premises  in  other  respects;  and  the  only 
rental  was  to  be  the  taxes  for  the  year,  and  a  certain  portion  of  the 
crops,  should  she  not  exercise  the  option  of  purchase.  Now,  we  know, 
as  the  parties  doubtless  also  knew,  that  the  taxes  would  not  become 
due  or  payable  until  a  very  short  time  before  the  expiration  of  the 
lease.  The  statutes  require  the  tax  list  to  go  into  the  hands  of  the  col- 
lector by  the  third  Monday  of  September,  and  the  taxes  would  not 
become  delinquent  until  the  last  day  of  December.  Indeed,  the  amount 
of  the  taxes  could  not  have  been  ascertained  until  September.  Here, 
then,  is  to  be  perceived  a  substantial  reason  for  the  requirement  of  se- 
curity in  advance.  A  reason  is  also  to  be  found  in  the  nature  of  the 
covenants  of  the  plaintiff  respecting  the  use  to  be  made  of  certain 
parts  of  the  premises,  as  well  as  to  the  keeping  of  the  improvements 
in  fepair. 

This  would  all  indicate  that  the  agreement  for  the  security  was  in- 
tended as  a  condition,  rather  than  a  mere  covenant.  Moreover,  as  a 
covenant,  it  would  have  added  nothing  substantially  to  the  contract. 
The  damages  that  might  be  recovered  upon  its  breach  could  not  have 
exceeded  the  damages  sustained  by  a  breach  of  the  covenants  which  it 
was  intended  to  secure;  and  those  damages  would  be  as  capable  of 
recovery  by  assigning  and  proving  a  breach  of  the  principal  covenants. 
The  very  nature  of  the  'provision  would  seem  to  stamp  it  as  a  condi- 
tion precedent.  There  would  be  little  necessity  for  requiring  security 
by  a  deposit  of  money  after  the  time  for  performance  of  the  lease  had 
expired,  and  the  lessee  had  enjoyed  on  her  part  all  its  benefits.  As  no 
time  for  making  the  deposit  was  stated,  doubtless  a  reasonable  time 


ESTATES   UPON   CONDITION 


195 


would  be  implied,  and,  had  the  lessee  been  out  of  possession,  a  tender 
of  the  security  and  demand  for  possession  within  a  reasonable  time 
might  no  doubt  have  entitled  her  to  possession  under  the  lease.  But 
no  such  question  arises  here.  It  was  clearly  proven,  and  so  found  by 
the  court,  that  she  was  in  possession  at  and  prior  to  the  making  of 
the  contract.  There  is  nothing  in  the  evidence  to  show  that  Frank 
did  any  act  toward  placing  her  in  possession ;  nor  is  the  title  or  right 
under  which  she  had  been  in  possession  disclosed,  except,  perhaps,  it 
may  be  inferred  from  a  circumstance  to  which  we  shall  have  occasion 
to  refer. 

There  is  no  question  of  waiver  of  the  condition  which  we  are  per- 
mitted to  consider.  The  pleadings  set  out  a  full  compliance  with  all 
conditions,  and  the  judgment  of  the  court  was  based  upon  a  finding 
that  they  had  been  substantially  complied  with.  The  reply,  indeed, 
alleges  that  Frank  did  not  demand  the  deposit;  but  he  was  not  re- 
quired to  do  so.  There  is  no  showing,  however,  as  to  that  averment. 
The  evidence  is  silent  as  to  whether  or  not  such  a  demand  was  made. 
But,  when  the  plaintiff  was  charged  with  failing  to  furnish  the  security, 
she  responded  by  saying  that  she  repudiated  that  agreement.  It  is  not 
disclosed,  moreover,  that  Frank  did  anything  toward  recognizing  the 
possession  of  the  plaintiff,  after  the  making  of  the  contract,  or  that 
he  did  any  act  in  relation  to  the  property,  except  to  sell  and  convey 
it  to  Mrs.  McKenzie  on  April  17th;  and  after  that  the  record  is  silent 
concerning  him  until  his  refusal  of  the  tender  of  the  purchase  price 
September  20th,  except  that  he  appears  to  have  been  present  at  an 
interview  between  the  plaintiff  and  Mrs.  McKenzie,  and  their  attor- 
neys, after  plaintiff  had  been  evicted  from  the  premises.  But  we  think 
the  question  of  waiver  is  not  the  case  now  before  us.  The  trial  court 
made  no  finding  in  that  respect,  and  such  an  issue  is  not  presented  by 
the  pleadings. 

"The  above  facts  have  been  adverted  to  for  the  purpose  of  showing 
that  nothing  appears,  even  by  the  subsequent  conduct  of  Frank,  to  in- 
dicate an  intention  to  treat  the  agreement  for  security  as  anything 
other  than  a  condition  precedent  to  any  right  of  the  plaintiff  to  the 
premises  under  the  lease.  Similar  provisions  have,  so  far  as  we  have 
been  able  to  discover,  been  held  to  amount  to  conditions  precedent. 

In  the  English  case  of  John  v.  Jenkins,  1  C.  &  M.  (Exch.)  227,  the 
lease  there  before  the  court  contained  words  of  present  demise :  "He, 
the  said  Esau  Jenkins,  lets  this  farm  to  David  Jones,"  etc.  But  the 
following  clause  was  contained  in  it :  "David  Jones  is  to  give  two 
sureties  to  answer  for  the  rent."  The  court  said  that  the  provision  as 
to  sureties  was  very  important,  and  showed  that  the  instrument  was 
never  intended  to  operate  as  a  lease  at  all  events,  but  to  operate  as 
an  agreement  only,  and  that  it  was  not  to  so  operate,  except  security 
should  be  given  for  the  rent  by  two  sureties  on  the  part  of  plaintiff; 
and,  as  no  sureties  were  given,  the  instrument  was  for  that  reason, 
as  well  as  others  unnecessary  to  mention,  held  to  be  without  effect, 


196  CONDITIONAL   OR    QUALIFIED    ESTATES 

and  the  plaintiff's  possession  was  held  to  have  been  under  the  terms 
of  a  previous  tenancy.  In  that  case  the  plaintiff  was  in  possession  as 
tenant  under  a  former  agreement  when  the  one  in  controversy  was  en- 
tered into. 

In  McGaunten  v.  Wilbur,  1  Cow.  (N.  Y.)  257,  a  house  was  hired 
on  October  31st  for  six  months  from  the  1st  day  of  November  fol- 
lowing, for  which  the  hirer  agreed  to  pay  $150,  $50  to  be  paid  in  ad- 
vance, and  the  residue  to  be  secured  by  a  bill  of  sale  of  his  furniture 
in  the  nature  of  a  mortgage.  At  the  time  of  the  hiring  the  hirer  men- 
tioned that  he  would  not  want  possession  for  a  fortnight.  On  the  3d 
of  November  the  owner  of  the  house,  not  having  received  the  advance 
payment  or  security,  rented  it  to  another  tenant.  A  few  days  later  the 
first  party  tendered  the  $50  and  bill  of  sale,  and  demanded  possession. 
It  was  held  that  as  the  tenancy  under  the  agreement  was  to  commence 
November  1st  and  the  advance  payment  had  not  been  made  on  that 
day,  nor  the  security  given,  the  owner  had  the  right  to  consider  the 
contract  at  an  end,  and  let  his  house  to  any  other  person.  To  the 
same  effect  are  the  following  cases:  Andis  v.  Personett,  108  Ind. 
202,  9  N.  E.  101 ;  Hard  v.  Brown,  18  Vt.  87.  See,  also,  Cassity  v. 
Robinson,  8  B.  Mon.  (Ky.)  279 ;  Stainton's  Adm'r  v.  Brown,  6  Dana 
(Ky.)  248;  Burlington  &  M.  R.  R.  Co.  v.  Boestler,  15  Iowa,  555. 

It  is  impossible,  therefore,  to  construe  the  provision  in  question  as 
anything  other  than  a  condition  precedent,  and  hence,  until  performed, 
the  instrument  was  only  an  agreement  for  a  lease ;  but,  not  having  been 
performed,  the  lease  did  not  become  effective  or  binding  upon  the 
owner  of  the  premises,  and  cannot  be  regarded  as  constituting  a  con- 
sideration for  the  optional  agreement  to  convey.  There  is  nothing  in 
the  fact  of  plaintiff's  possession  to  change  the  situation.  She  was  in 
possession  at  and  before  the  signing  of  the  contract,  and  there  is  no 
proof  that  Frank  delivered  possession  to  her.  It  is  not  perceived, 
therefore,  upon  what  ground  such  possession  can  be  regarded  as  im- 
parting vitality  to  the  lease.  In  the  absence  of  any  other  showing, 
she  would  be  but  a  mere  tenant  by  sufferance.  Rev.  St.  1899,  §  2772. 
The  taking  and  keeping  possession  by  the  plaintiff,  without  more,  was 
clearly  not  a  part  performance  of  the  contract  on  her  part.  Possession 
is  what  she  contracted  to  receive,  not  to  give,  and  there  is  no  oppor- 
tunity or  foundation  in  this  case  upon  the  record  for  the  application 
of  the  principle  that,  when  a  party  has  voluntarily  accepted  the  bene- 
fits of  part  performance,  he  may  be  precluded  from  insisting  upon  the 
performance  of  the  residue  as  a  condition  precedent  to  his  liability 
to  pay  for  what  he  has  received. 

No  doubt,  has  the  lessor  put  the  lessee  in  possession,  that  act  might 
have  indicated  an  intention  not  to  treat  the  agreement  for  security 
as  a  condition  precedent;  and  possibly  the  same  intention  might  have 
been  gathered  from  affirmative  acts  of  the  lessor  in  recognition  of 
the  possession  and  an  existing  tenancy  under  the  contract.  But  there 
is  no  evidence  of  such  acts  on  Frank's  part.     The  evidence  does  dis- 


ESTATES   UPON   CONDITION  197 

close  a  notice  served  upon  the  plaintiff  in  the  early  part  of  July  by 
Mrs.  McKenzie,  which  seems  to  recognize  in  a  way  that  plaintiff  was 
holding  under  the  lease,  but  asserted  that  she  had  not  complied  with 
-its  terms,  and  that  the  giver  of  the  notice  reserved  the  right  to  declare 
the  lease  forfeited.  But  Mrs.  McKenzie  was  not  a  party  to  the  con- 
tract, and  we  do  not  understand  that  she  could,  by  recognizing  the 
lease  at  that  time  and  in  that  manner,  render  it  effective,  so  as  to  make 
the  obligation  to  convey  binding  upon  Frank,  her  vendor.  There  is 
nothing  to  show  that  the  latter  advised  or  consented  to  the  notice,  or 
knew  of  it,  and  hence  it  can  hardly  be  deemed  persuasive  of  an  in- 
tention on  his  part,  or  of  the  parties  to  the  contract,  to  consider  the 
contract  as  a  present  demise,  and  the  provision  as  to  security  as  a  mere 
covenant. 

We  are  constrained,  therefore,  to  hold  that  the  ^ding  of  substan- 
tial compliance  with  the  terms  of  the  contract  is  not  sustained  by  the 
evidence.    *    *    * 


WARNER  V.  BENNETT. 

(Supreme  Court  of  Errors  of  Connecticut,  1863.     31  Conn.  468.) 

Sanford,  J.  In  our  opinion  the  conveyance  from  Tomlinson  to 
Bennett  and  others  was  of  a  fee  simple  estate  upon  condition  express- 
ed in  the  deed.  The  instrument  is  a  common  deed  of  bargain  and  sale 
to  the  grantees,  their  heirs,  and  assigns  forever,  for  certain  uses  speci- 
fied in  the  deed,  which  contains  the  following  clause :  "The  conditions 
of  the  within  deed  are  such  that  whenever  the  within  named  premises 
shall  be  converted  to  any  other  use  than  those  named  within,  and  the 
within  grantees  shall  knowingly  persist  in  the  use  thereof  for  any  pur- 
pose* whatever  except  such  as  are  described  in  said  within  deed,  the 
said  grantees  forfeit  the  right  herein  conveyed*  to  the  within  described 
premises,  upon  the  grantor  paying  to  the  said  Hatch  and  Bennett  and 
other  stockholders  the  appraised  value  of  such  buildings  as  may  be 
thereon  standing." 

Blackstone  says,  estates  upon  condition  "are  such  whose  existence 
depends  upon  the  happening  or  not  happening  of  some  uncertain  event 
whereby  the  estate  may  be  originally  created  or  enlarged,  or  finally  de- 
feated." 2  Bl.  Comm.  151.  Littleton  says,  "It  is  called  an  estate  upon 
condition  because  that  the  estate  of  the  feoffee  is  defeasible  if  the  con- 
dition be  not  performed."  Co.  Litt.  §  325.  "A  condition  is  created  by 
inserting  the  very  word  'condition'  or  'on  condition'  in  the  agreement." 
1  Bouv.  Inst.  285.  Conditions  are  precedent  or  subsequent.  "Preced- 
ent are  such  as  must  happen  or  be  performed  before  the  estate  can 
vest  or  be  enlarged.  Subsequent  are  such  by  the  failure  or  non-per- 
formance of  which  an  estate  already  vested  may  be  defeated."  2  Bl. 
Comm.  154.  In  the  case  of  a  condition  "the  estate  or  thing  is  given  ab- 
solutely without  limitation,  but  the  title  is  subject  to  be  divested  by  the 


198  CONDITIONAL    OR   QUALIFIED    ESTATES 

happening  or  not  happening  of  an  uncertain  event.  Where,  on  the  con- 
trary, the  thing  or  estate  is  granted  or  given  until  an  event  shall  have 
arrived,  and  not  generally  with  a  liability  to  be  defeated  by  the  happen- 
ing of  the  event,  the  estate  is  said  to  be  given  or  granted  subject  to  a 
limitation."    2  Bouv.  Inst.  275;  2  Bl.  Comm.  155. 

In  the  case  before  us  the  estate  vested  in  the  grantees  upon  the  deliv- 
ery of  the  deed,  to  have  and  to  hold  to  them,  their  heirs  and  assigns, 
not  until  they  should  convert  the  property  to  other  uses  than  those 
specified  in  the  deed,  nor  so  long  as  they  should  continue  to  use  it  for 
the  purposes  specified,  but  forever;  \yith  a  proviso  or  condition  ex- 
pressed in  the  deed,  that  if  they  should  convert  the  property  to  other 
uses  they  should  forfeit  their  estate.  The  words  employed  are  most 
appropriate  and  apt  to  make  an  express  condition  in  deed.  They  are 
"the  conditions  of  the  within  deed  are  such,"  etc.  And  in  Portington's 
Case,  10  Coke,  41a,  it  is  said  that  ''express  words  of  condition  shall  not 
be  taken  for  a  limitation."  It  has  indeed  been  held  that  they  may  be  so 
taken  where  the  estate  is  limited  over  to  a  third  person  upon  the  breach 
or  non-performance  of  the  condition  (Fry's  Case^  1  Inst.  202)  but  there 
is  no  such  limitation  over  in  the  case  before  us.  So  when  it  is  said  that 
"whenever  the  within  named  premises  shall  be  converted  to  any  other 
use,"  etc.,  "the  grantees  forfeit  the  right  herein  conveyed,"  it  is  clearly 
indicated  that  the  estate  thus  forfeited  by  the  misappropriation  is  to  be 
cut  off  before  the  time  originally  contemplated  for  its  termination  by 
the  parties. 

But  it  is  said  that  by  the  terms  of  the  instrument  the  forfeiture  de- 
pends not  merely  upon  the  misappropriation  of  the  property  by  the  gran- 
tees, but  also  upon  the  grantor's  payment  of  the  appraised  value  of  the 
building.  Suppose  it  is  so,  how  can  that  affect  the  question  whether 
this  is  a  condition  indeed  or  a  limitation?  No  matter  how  many 
events  the  forfeiture  depends  upon,  nor  how  many  individuals  must  act 
in  producing  them,  when  all  those  events  concur  and  co-exist  the  for- 
feiture is  effected  as  completely  as  if  it  depended  upon  the  occurrence 
of  a  single  event,  and  the  action  or  omission  of  a  single  individual. 
But  the  payment  for  the  building  was  not  an  event  upon  which  the  for- 
feiture depended.  It  was  merely  a  duty  imposed  upon  the  grantor  by 
the  contract  in  addition  to  that  which  the  law  imposed,  to  enable  him 
to  take  advantage  of  the  breach  of  condition  and  enforce  the  forfei- 
ture. Hij  legal  obligation  to  enter  for  breach  of  the  condition  was  in 
no  wise  aft'ected  by  it.  The  estate  conveyed  by  the  deed  was  not  an 
easement,  or  any  other  right  or  interest  in  the  property  less  than  a  fee 
simple.  The  fact  that  the  instrument  was  signed  by  both  of  the  parties 
to  it  is  of  no  importance.  They  were  neither  more  nor  less  bound  by 
the  stipulations  and  conditions  contained  therein  by  reason  of  such 
signature.  The  instrument  contains  no  contract  on  the  part  of  the 
grantor  to  pay  for  the  building.  The  provision  upon  that  subject  oper- 
ates as  a  qualification  of  the  grantor's  right  to  enforce  the  forfeiture 
and  regain  his  property,  but  operates  in  no  other  way.     But  for  that 


ESTATES   UPON   CONDITION 


199 


provision  the  estate  granted  could  have  been  put  an  end  to,  and  revest- 
ed in  the  grantor,  by  an  entry  only;  under  that  provision  an  entry 
could  be  made  available  only  by  payment  for  the  building  also. 

We  think  it  clear  that  the  estate  of  the  grantees  was  an  estate  on 
condition  in  deed,  and  that  it  was  an  estate  upon  condition  subsequent; 
and  hence,  notwithstanding  a  breach  of  the  condition  by  reason  of 
which  the  estate  might  have  been  defeated,  it  must  continue  to  exist 
in  the  grantees,  with  all  its  original  qualities  and  incidents,  until  the 
grantor  or  his  heirs  by  an  entry  (or  its  equivalent,  a  continual  claim), 
have  manifested  in  the  way  required  by  law,  their  determination  to 
take  advantage  of  the  breach  of  condition,  to  avail  themselves  of  their 
legal  rights,  and  to  reclaim  the  estate  thus  forfeited. 

The  law  upon  this  point  is  thus  laid  down  by  Professor  Washburn, 
in  the  first  volume  of  his  treatise  on  Real  Property  (page  450),  with 
accuracy  and  precision.  "A  condition,  however,  defeats  the  estate  to 
which  it  is  annexed  only  at  the  election  of  him  who  has  a  right  to  en- 
force it.  Notwithstanding  its  breach,  the  estate,  if  a  freehold,  can  only 
be  defeated  by  an  entry  made,  and  until  that  is  done  it  loses  none  of  its 
original  qualities  or  incidents."  See,  also.  Id.  452;  2  Bl.  Comm.  155; 
2  Cruise,  Dig.  42. 

But  there  is  in  this  bill  no  allegation  that  an  entry  for  condition  bro- 
ken  was  ever  made.  No  right  to  maintain  this  suit  is  disclosed,  no  title 
to  the  property  is  set  up,  nothing  is  claimed  but  a  right  of  entry  for 
condition  broken.  And  for  this  reason,  if  for  no  other,  the  bill  is  in- 
sufficient, and  the  decree  must  be  pronounced  erroneous. 

The  allegation  in  relation  to  an  abandonment  of  the  property  is  im- 
material. It  is  not  averred  that  the  grantees  had  abandoned  the  prop- 
erty, but  only  that  they  had  abandoned  it  "so  far  as  the  uses  named  in 
said  deed  are  concerned ;"  that  is,  that  they  had  ceased  to  use  the  prop- 
erty for  the  purposes  for  which  the  grant  was  made,  not  that  they  had 
ceased  to  use  it  altogether.  What  effect  an  absolute  and  entire  aban- 
donment of  the  property  by  the  grantees  would  have  had  upon  the  legal 
or  equitable  rights  of  this  petitioner,  we  are  not  now  called  upon  to  de- 
cide. 

Secondly.  A  right  of  entry  for  condition  broken  is  not  assignable  at 
common  law,  and  we  have  no  statute  which  makes  it  so.  2  Cruise,  Dig. 
4;  4  Cruise,  Dig.  113;  1  Spence,  Eq.  Jur.  153;  1  Swift,  Dig.  93.  The 
grantor  or  his  heirs  only  can  enter  for  breach  of  such  condition.  1 
Washb.  Real  Prop.  451 ;  2  Cruise,  Dig.  44.  The  petitioner  therefore 
could  have  obtained  no  right  or  title  to  make  an  entry  for  breach  of  the 
condition,  and  without  such  entry  the  estate  of  the  grantees  could  not 
be  terminated,  and  no  suit  at  law  or  in  equity  could  be  maintained 
against  the  occupant  of  the  property. 

Thirdly.  If  there  was  a  breach  of  the  condition  and  a  forfeiture  of 
the  grantees^s"tate  in  consequence,  and  if  a  right  of  entry  could  be  and 
was  in  fact  assigned  to  the  petitioner,  still  the  petitioner  could  not  ob- 
tain the  relief  for  which  he  seeks  in  a  court  of  equity,  because,  that 


200  CONDITIONAL    OR    QUALIFIED    ESTATES 

court  never  lends  its  aid  to  enforce  a  forfeiture.  4  Kent,  Comm.  130; 
"T^toryVEq.  Jur.  §  1319;  Livingston  v.  Tompkins,  4  Johns.  Ch.  (N.  Y.) 
415,  8  Am.  Dec.  598. 

Lastly.  If  the  right,  title  or  interest,  whatever  it  was,  of  the  grantor 
or  his  heirs  was  assignable,  and  was  assigned  to  and  vested  in  the  peti- 
tioner, as  he  claims,  he  had  no  occasion  to  come  into  a  court  of  equity 
for  relief.  We  do  not  see  why  he  might  not  have  entered  for  breach 
of^  the  conditions,  requested  the  respondent  to  unite  with  him  in  pro- 
curing an  appraisal  of  the  building,  if  he  refused,  procured  such  ap- 
praisal without  the  respondent's  co-operation,  tendered  the  amount  of 
the  appraisal,  and  brought  his  action  of  ejectment.  The  petitioner's 
legal  right,  if  he  had  it,  to  put  an  end  to  the  grantees'  estate  and  obtain 
possession  of  the  property,  we  think  could  have  been  defeated  by  the 
respondent's  refusal  to  co-operate  in  the  appraisal  or  accept  the  tender. 
See  1  Swift,  Dig.  295 ;  Powell,  Cont.  417.  We  know  of  no  power  in  a 
court  of  equity  to  compel  the  respondent  to  join  the  petitioner  in  pro- 
curing an  appraisal  nor  to  make  one,  in  such  a  case  as  this ;  and  we  see 
no  occasion  for  the  exercise  of  such  a  power  if  it  exists.  We  think 
th£ petitioner  has  an  adequate  remedy  for  the  enforcement  and  protec- 
tion of  all  his  rights  at  law. 

There  is  manifest'  error  in  this  record.  In  this  opinion  the  other 
judges  concurred,  except  DuTTon,  J,,  who,  having  tried  the  case  in 
the  court  below,  did  not  sit. 


HAYDEN  V.  STOUGHTON. 

(Supreme  Judicial  Court  of  Massactiusetts,  1827.     5  Pick.  528.) 

Writ  of  entry.  The  parties  stated  the  following  case: 
Lemuel  Drake  died  seised  in  fee  of  the  demanded  premises  and  of 
several  other  parcels  of  land  in  Stoughton,  in  1806.  In  his  will,  which 
was  approved  and  allowed  on  the  5th  of  November  in  that  year,  the 
demanded  premises  were  disposed  of  as  follows :  "I  give  to  the  town 
of  Stoughton  my  lot  of  land  in  said  town,  which  I  bought  of  Ephraim 
Wales,  (the  land  in  controversy,)  containing  about  eight  acres ;  also 
about  twenty  five  acres  of  woodland  in  said  town,  which  I  have  bar- 
gained for  of  Elijah  Belcher;  and  in  failure  of  receiving  a  deed  of 
said  Belcher  for  said  land,  I  give  to  said  town  three  hundred  dollars. 
Both  of  the  above  pieces  of  land  (or  money  instead  of  the  last  piece)  I 
give  to  said  town  for  the  purpose  of  building  a  schoolhouse  for  the 
use  of  a  free  grammar  school  (or  other  school),  as  said  town  may  di- 
rect. Provided  said  schoolhouse  is  built  by  said  town  within  one  hun- 
dred rods  of  the  place  where  the  meetinghouse  now  stands."  The  tes- 
tator gives  a  small  legacy  to  a  nephew  and  another  to  a  niece,  to  be 
paid  when  they  should  respectively  arrive  at  the  age  of  eighteen  years ; 
but  if  either  of  them  should  die  before  that  time,  then  the  legacy 
should  go  to  the  use  of  the  school.    He  also  gives  to  the  precinct  in 


ESTATES   UPON   CONDITION  201 

Stoughton  certain  lots  of  land,  part  for  a  parsonage  and  part  for  the 
use  of  the  ministry,  but  "if  the  meetinghouse  is  removed  from  the  lot 
it  now  stands  on,  and  no  other  built  in  its  stead,"  then  he  gives  these 
lots  "to  the  use  of  the  free  school  above  mentioned."  He  appoints  his 
wife  executrix,  and  besides  some  specific  devises  to  her,  the  will  con- 
tains the  following  provision :  "All  the  remainder  of  my  estate,  of 
what  name  or  nature  soever,  or  wherever  the  same  may  be  found,  I 
give  and  bequeath  to  my  beloved  wife,  Abigail  Drake,  her  heirs  and 
assigns  forever." 

The  demandants  are  part  of  the  heirs  at  law  of  Abigail  Drake,  but 
not  of  Lemuel  Drake. 

On  the  5th  of  May,  1806,  the  town  of  Stoughton  voted  to  "accept 
the  donation  of  Lemuel  Drake,  and  to  make  provision  for  performing 
the  conditions  on  their  part,  agreeable  to  the  will  of  said  deceased,  as 
soon  as  the  circumstances  of  the  town  will  permit." 

Abigail  Drake  died  in  1806  intestate;  and  administration  de  bonis 
non  with  the  will  of  Lemuel  Drake  annexed,  was  committed  to  Samuel 
Talbot,  who  on  the  14th  of  March,  1817,  delivered  possession  of  the 
demanded  premises  to  the  town  of  Stoughton  and  accounted  for  the 
rent  up  to  that  time,  and  the  town  has  occupied  the  premises  ever  since. 
But  the  town  had  not  built  any  schoolhouse  within  one  hundred  rods 
of  the  meetinghouse  before  the  commencement  of  this  action. 

The  records  of  the  town  prior  to  the  date  of  the  writ,  and  reports  of 
committees  referred  to  in  such  records,  were  made  part  of  the  case. 
They  showed  that  the  subject  of  the  donation  had  been  frequently  be- 
fore the  town,  but  it  did  not  appear  from  them  that  the  town  had  be- 
gun to  perform  the  conditions  of  the  devise.  In  1818  the  town  voted 
"to  take  $116  and  one  year's  interest  of  the  same  (it  being  the  rent  of  a 
meadow  and  the  interest  of  a  donation  given  to  the  town  by  Mr. 
Lemuel  Drake,  etc.)  for  the  use  of  schooling  the  present  year,  and 
relinquish  so  much  of  the  school  money  that  is  granted  by  the  town  the 
present  year  for  schooling." 

If  on  these  facts  and  others  appearing  in  the  records  and  reports 
above  mentioned,  the  town  of  Stoughton  had  forfeited  the  land  de- 
manded, and  if  the  demandants  were  entitled  to  reclaim  it,  the  tenants 
v/ere  to  be  defaulted;  otherwise  the  demandants  were  to  become  non- 
suit. 

PuTMAN,  J.  The  first  question  which  the  case  presents  for  decision 
is,  whether  the  devise  was  upon  a  condition  precedent  or  subsequent. 
We  are  all  clearly  of  opinion  that  it  was  upon  a  condition  subsequent, 
and  that  the  estate  vested  immediately  in  virtue  of  the  devise.  The  fee 
did  not  rest  in  abeyance  until  the  schoolhouse  should  be  built,  but  was 
to  be  forfeited  if  it  should  not  be  built  in  a  reasonable  time. 

The  next  inquiry  is,  whether  the  devisees  have  forfeited  the  estate  by 
reason  of  their  not  having  built  the  schoolhouse,  according  to  the  con- 
dition of  the  devise.  Where  no  particular  time  is  mentioned  for  the 
performance  of  a  condition  subsequent,  the  law  requires  that  it  should. 


202  CONDITIONAL    OR    QUALIFIED    ESTATES 

be  done  in  a  reasonable  time.  It  is  otherwise  of  conditions  precedent, 
which  are  for  the  advantage  of  the  party  performing  the  first  act. 
They  may  be  performed  at  the  will  of  the  party  and  at  such  time  as  he 
pleases.  Plowd.  16.  But  in  the  case  at  bar  benefit  was  conferred  pres- 
ently by  the  devise  of  the  estate.  And  the  party  entitled  to  have  the 
estate  upon  a  forfeiture  is  not  to  be  bound  by  the  mere  will  and  pleasure 
of  the  devisees  as  to  the  time  or  manner  of  performing  the  condition, 
for  that  would  in  effect  destroy  the  condition.  They  might  never  per- 
form it.  The  devisees  are  therefore  to  perform  in  a  reasonable,  viz.  a 
convenient  time — "according  to  the  nature  of  the  thing  to  be  done." 
Com.  Dig.  Condition,  G,  5.  A  devise  upon  condition  to  pay  debts ;  the 
debts  must  be  paid  in  convenient  time. 

The  devisees,  by  accepting  this  devise  and  entering  into  the  land, 
undertook  to  build  the  schoolhouse  in  a  convenient  time  within  one 
hundred  rods  of  the  place  where  the  meetinghouse  then  stood.  It  is 
said  in  Co.  Lit.  208  b,  that  if  one  make  a  f eoft'ment  in  fee,  upon  condi- 
tion that  the  feoffee  shall  enfeoff  a  stranger,  and  no  time  limited,  the 
feoffee  shall  not  have  during  his  life  to  make  the  feoffment,  for  then 
he  should  take  the  profits  in  the  mean  time  to  his  own  use,  which  the 
stranger  ought  to  have,  and  therefore  he  ought  to  make  the  feoffment 
as  soon  as  conveniently  he  may ;  and  so  it  is  of  the  condition  of  an  ob- 
ligation. 

The  intent  of  the  testator  was,  that  the  schoolhouse  should  be  built 
at  the  place  which  he  designated ;  not  that  the  devisees  should  have 
the  land  without  the  charge.  The  building  of  the  house  is  a  local  act, 
which  the  devisees  should  have  performed,  for  the  accomplishment  of 
the  benevolent  design  of  the  testator,  in  a  convenient  time.  Upon  the 
same  reason  as  is  said  in  Bothy's  Case,  6  Co.  31,  that  where  the  act  is 
local,  and  the  obligor  may  perform  it  for  the  benefit  of  the  obligee  in 
his  absence,  there  the  obligor  ought  to  do  it  in  a  convenient  time.  The 
house  might  be  built  by  the  devisees  without  the  concurrence  of  any 
other  party,  so  the  case  is  not  like  that  which  is  put,  of  a  local  act  to  be 
done  with  the  concurrence  of  an  obligor  and  obligee  ;  in  which  case  the 
obligor  hath  his  lifetime  to  perform,  unless  hastened  by  request.  It  is 
clear  to  our  minds,  that  the  devisees  were  not  at  liberty  to  postpone  the 
^  building  at  their  own  pleasure,  but  that  they  have  forfeited  the  land,  if 
3liey  "have  permitted  an  unreasonable  time  to  pass  without  performing 
the  condition. 

Of  that  the  court  must  determine  from  the  facts  which  are  found. 
The  will  was  proved  in  1805.  In  1806  the  inhabitants  voted  to  accept 
the  estate  and  perform  the  condition — twenty  years  before  the  action 
was  brought — and  no  schoolhouse  has  been  built.  The  inhabitants  of 
the  town,  during  this  long  period,  often  met  and  passed  votes  contra- 
dictory and  trifling,  and  still  continuing  to  take  the  rents  and  profits  of 
the  land.  They  have  omitted  to  do  in  that  long  period  of  time,  what 
might  have  been  done  in  a  month  as  well  as  in  a  century.    It  seems  to 


ESTATES   UPON   CONDITION  203 

US  that  they  have  not  conformed  to  the  manifest  intention  of  the  testa- 
tor.   They  have  forfeited  the  estate. 

We  are  next  to  consider  who  are  entitled  to  the  estate  upon  its  for- 
feiture. Does  it  belong  to  the  heirs  at  law  of  the  testator,  or  to  che 
plaintiffs,  who  represent  the  residuary  devisee,  to  whom  the  testator 
devised  all  the  remainder  of  his  estate  of  what  name  or  nature  soever,^ 
or  wherever  the  same  might  be  found  ? 

In  the  construction  of  wills,  the  first  and  great  object  is  to  give  effect 
to  the  intent  of  the  testator,  if  it  can  be  done  without  violating  any 
rules  of  law.  And  it  is  a  rule,  that  the  heir  at  law  is  not  to  be  disin- 
herited, unless  such  "appears  clearly  to  be  the  intention  of  the  devisor. 
If  the  devise  of  land  should  be  void  because  the  devisee  is  incapable  of 
taking,  and  the  devisor  should  give  all  his  real  estate  not  before  dispos- 
ed of,  the  land  would  be  included  in  the  residuary  clause.  It  is  said  in 
Perkins,  §  564,  that  in  the  case  of  a  devise,  the  remainder  shall  not  be 
avoided  by  the  entry  of  the  heir  for  the  condition  broken,  because  the 
will  of  the  devisor  shall  be  observed  in  as  much  as  it  may  be. 

So  in  Benet  v.  French,  cited  in  Sherewood  and  Nonne's  Case,  1  Leon. 
251,  where  a  man  seised  of  lands  devised  a  parcel  called  Gages  to  the 
erecting  of  a  school,  and  all  his  other  lands  to  French  in  fee,  the  devise 
of  Gages  was  held  void,  because  no  person  was  named  ;  and  it  was  fur- 
ther holden,  that  it  passed  by  the  general  words  to  French.  I  suppose 
the  court  construed  it  to  mean  other  lands  not  before  devised,  because 
the  Gages  were  not  before  devised,  by  reason  of  there  being  no  devisee 
named  who  should  take  the  land,  and  so  passed  to  the  residuary  dev- 
isee. Upon  the  same  principle,  if  the  devisee  die  before  the  making 
of  the  will,  the  devise  is  void,  and  the  land  shall  pass  by  the  residuary 
clause.  Doe  v.  Shefifield,  13  East,  526,  where  the  testator  devised  land 
to  the  sisters  of  J.  H.  as  tenants  in  common.  There  had  been  three 
sisters  of  J.  H.,  but  two  died  before  the  testator.  He  then  gave  all  his 
messuages,  lands,  etc.,  not  therein  before  disposed  of,  to  Scott.  And 
the  court  held,  touching  the  point  we  are  now  considering,  that  if  the 
surviving  sister  had  not  taken  the  whole,  but  only  a  third,  the  residuary 
devisee  would  have  taken  the  two  thirds,  because  the  testator  made  no 
disposition  of  the  two  thirds,  as  the  devisees  of  the  two  thirds  died 
before  the  making  of  the  will.  It  would  not  be  considered  as  a  valid 
devise,  for  the  want  of  a  devisee  in  existence  at  the  time  of  making  the 
will ;  and  no  better  than  if  the  devise  had  been  of  a  particular  estate 
to  a  monk;  which  would  be  void,  and  the  remainder-man  would  take 
immediately,  as  the  monk  was  not  capable  of  taking  at  all.  Perk.  §§ 
566,  567. 

But  where  there  was  a  devisee  in  existence,  capable  of  taking  the 
land,  at  the  time  when  the  will  was  made,  but  who  should  die  before 
the  will  should  be  consummated  by  the  death  of  the  devisor,  it  would 
be  considered  as  a  lapsed  devise.  And  in  such  case,  inasmuch  as  the 
devisor  had  disposed  of  his  whole  interest  in  the  land,  if  he  had  died 
immediately  after  making  the  will,  the  estate  would  have  vested  in  the 


204  CONDITIONAL    OR    QUALIFIED    ESTATES 

devisee.  The  law  supposes  that  the  devisor  did  not  contemplate  or  in- 
tend that  the  residuary  clause  or  devise  of  all  his  land  not  before  dis- 
posed of,  should  embrace  land  contained  in  the  lapsed  devise.  The  re- 
siduary clause  touching  real  estate  is  to  include  all  the  interest  of  the 
devisor  which  he  had  not  disposed  of  when  the  will  was  made,  and 
jhe  heir  is  not  to  be  defeated  on  account  of  the  contingency  of  the 
death  of  the  devisee  after  the  making  of  the  will;  which  the  devisor 
cc)uld  not  foresee. 

It  is  true  that  in  regard  to  personal  property,  the  law  allows  the  resid- 
uary legatee  to  take  whatever  shall  eventually  turn  out  not  to  be  dis- 
posed of,  whether  it  arise  from  accident  or  design.  And  the  counsel 
for  the  plaintiffs  have  argued,  that  there  is  no  good  reason  for  the  dis- 
tinction, and  that  lapsed  devises  of  real  estate  should  go  to  the  residu- 
ary devisee,  as  well  as  lapsed  legacies  of  personal.  There  is  however  a 
marked  difference  in  the  effect  of  a  will  upon  personal,  and  upon  real 
property.  The  personal  estate  which  is  acquired  after  the  will  passes 
by  the  will,  but  real  property  acquired  after  the  will  does  not  pass,  and 
is  not  affected  by  any  disposition  in  a  will  made  before  its  acquisition. 
The  testator  can  devise  only  such  real  estate  as  he  has  at  the  time  of 
making  the  will.  The  law  upon  this  subject,  viz.  that  the  heir,  and  not 
the  residuary  legatee  or  devisee,  shall  have  the  advantage  of  lapsed  de- 
vises, is  now  settled,  and  has  been  so  held  for  more  than  half  a  century. 
Doe  V.  Underdown,  Willes,  293,  and  the  cases  cited,  particularly  Wright 
v.  Hall,  cited  in  Willes,  299.  In  which  last  case  Lord  King  says,  "The 
testator  makes  his  will  as  if  he  were  to  die  that  moment,  and  it  cannot 
be  presumed  that  he  intended  to  devise  a  contingency  which  afterwards 
happened,  (viz.  the  death  of  the  devisee  after  the  will  and  before  the 
devisor,)  and  which  he  could  not  forsee." 

So  in  Gravenor  v.  Hallum.  Ambl.  645,  the  Lord  Chancellor  Cambden 
considers  the  law  to  be  settled.  So  Lord  Chancellor  Hardwicke,  in 
Durour  v.  Motteux,  1  Ves.  Sen.  321.  See  also  Cambridge  v.  Rous,  8 
Ves.  Jun.  25. 

We  are  disposed  to  think  this  point  settled,  and  upon  as  good  reason 
certainly  as  the  rule  applicable  to  lapsed  personal  legacies. 

But  the  devise  under  consideration  cannot  be  viewed  as  lapsed.  A 
lapsed  devise  is  where  the  devisee  dies  after  the  making  of  the  will  and 
before  the  testator.  But  here  the  devisees  remain  as  a  corporation  ag- 
gregate, and  the  estate  vested  in  them  as  a  conditional  fee  simple.  It 
was  not  therefore  technically  a  lapsed  devise.  We  are  now  to  consider 
the  effect  of  it. 

The  third  rule  laid  down  by  Chief  Justice  Willes  in  Doe  v.  Under- 
down,  and  which  has  been  recognized  in  a  late  case  of  Doe  v.  Scott, 
3  M.  &  S.  300,  is,  that  when  a  testator  has  given  away  all  his  estate 
and  interest  in  certain  lands,  so  that  if  he  were  to  die  immediately 
nothing  remains  undisposed  of,  he  cannot  intend  to  give  anything  in 
these  lands  to  his  residuary  devisee.    That  would   be  properly  the  case 


ESTATES   UPON   CONDITION  205 

of  a  lapsed  devise  of  real  estate,  and  the  heir,  and  not  the  residuary 
devisee,  shall  have  the  benefit  of  it.  The  converse  of  that  proposition, 
viz.  that  if  the  testator  has  not  given  away  all  his  interest  in  the  land, 
so  that  if  he  were  to  die  immediately  something  would  remain  undis- 
posed of,  it  is  to  be  presumed  that  he  intended  to  give  the  remainder 
in  such  lands  to  the  residuary  devisee,  was  the  rule  adopted  in  the  case 
of  Doe  V.  Scott ;  and  that  rule  we  think  must  be  applied  to  the  case  at 
bar. 

In  Doe  V.  Scott  the  testator  devised  all  his  lands  to  J.  M.  and  his  heirs 
forever,  provided  that  he  or  his  heirs  do  within  six  months  after  the 
decease  of  the  devisor  assure  certain  premises  to  R.  M.  and  his  chil- 
dren, viz.  to  R.  M.  for  life,  and  his  children  in  fee ;  and  he  gave  all  the 
rest  of  his  lands  wheresoever,  etc.,  to  John  and  James  Scott.  J.  M.  and 
R.  M.  died  after  the  making  of  the  will  and  before  the  testator,  bache- 
lors. And  the  case  was  determined  in  favour  of  the  Scotts  the  residu- 
ary devisees,  on  the  ground,  that  there  was  no  devise  of  the  fee  abso- 
lutely; for  that  if  J.  M.  did  not  assure  to  R.  M.  for  life  remainder  in 
fee  to  his  children,  there  would  be  an  interest  in  the  devisor  undisposed 
of  by  that  devise,  which  would  pass  by  the  residuary  clause.  Lord 
Ellenborough,  in  delivering  the  opinion,  states  with  approbation  the 
rule  laid  down  by  Chief  Justice  Willes  in  Doe  v.  Underdown,  that  the 
intent  of  the  testator  is  to  be  taken  as  things  stood  at  the  time  when  the 
will  was  made  and  that  the  devise  must  mean  the  rest  and  residue  un- 
bequeathed  at  the  time  of  making  the  will. 

Now  we  think  the  principle  of  that  decision  is  exceedingly  applicable 
to  the  case  at  bar.  In  this  case,  as  in  that,  the  devise  was  of  a  condi- 
tional and  not  of  an  absolute  fee.  There  was  a  contingent  interest 
which  the  devisor  might  have  disposed  of  if  he  had  pleased,  to  take 
effect  upon  the  forfeiture  of  the  estate ;  and  he  has  in  the  residuary 
clause  used  words  which  are  broad  enough  to  pass  the  contingent  in- 
terest. It  is  clear  that  the  testator  did  not  dispose  of  his  whole  interest 
to  the  inhabitants.  The  inhabitants  might  not  choose  to  perform  the 
condition,  and  so  might  forfeit  their  interest.  The  testator  might  have 
limited  over  that  contingent  interest  specially.  If  he  had  done  so,  there 
can  be  no  doubt  but  that  it  would  have  been  a  good  limitation  of  his 
remaining  interest.  He  made  no  limitation  over.  But  nevertheless 
the  devise  did  not  lapse.  The  inhabitants  became  seised  of  the  fee 
simple  conditional,  and  the  contingent  interest  not  otherwise  disposed  of 
was  disposed  of  by  the  residuary  clause. 

We  have  been  greatly  assisted  in  this  investigation  by  the  able  and 
learned  arguments  of  the  counsel.  The  result  of  the  whole  is,  that 
the  devise  to  the  inhabitants  of  Stoughton  was  upon  a  condition  subse- 
quent, and  the  estate  vested  accordingly;  that  they  have  forfeited  the 
estate  by  neglecting  to  comply  with  the  condition ;  that  the  testator  had 
an  interest  undisposed  of,  depending  upon  the  contingency  of  the  per- 
formance or  non-performance  of  the  condition,  which  passes  to  the 


206  CONDITIONAL    OR    QUALIFIED    ESTATES 

residuary  devisee;   and  that  the  plaintiffs  claiming  under  her  are  enti- 
tled to  recover. 

The  defendants  must  therefore  be  defaulted.' 


II.  Void  Conditions  * 


See  ]\Iann  v.  Jackson,  post,  p.  206. 


III.  Termination  of   Conditional  Estates ' 


See  Warner  v.  Bennett,  ante,  p.  197. 


IV.  Who  may  Enforce  Forfeitures  • 


See  Warner  v.  Bennett,  antC;  p.  197. 


V.  Estates  upon  Limitation  ' 


MANN  V.  JACKSON. 

(Supreme  Judicial  Court  of  Maine,  1892.    84  Me.  400,  24  Atl.  SS6,  16  L.  R.  A. 

707,  30  Am.  St.  Rep.  358.) 

Report  from  supreme  judicial  court,   Penobscot  county. 

Bill  in  equity  by  William  E.  Mann  and  another  against  Helen  S. 
Jackson  to  obtain  a  construction  of  the  will  of  William  Mann,  de- 
ceased. 

WhitehousE,  J.  This  is  a  bill  in  equity  brought  for  the  purpose 
of  obtaining  a  judicial  construction  of  the  following  will : 

"(1)  I  will  that  the  money  which  may  come  from  the  policy  of  in- 

8  This  case  of  Hayden  v.  Stoughton  is  cited  by  the  court  in  Proprietors  of 
Church  in  lirattle  Square  v.  Grant,  post,  p.  212,  and  it  is  there  said  that  this 
case  "did  not  raise  any  question  as  to  the  remoteness  of  the  gift  over,  be- 
cause it  there  vested,  accordiug  to  the  construction  given  to  the  will,  within 
twenty  years  from  the  death  of  the  testator  and  therefore  within  the  pre- 
scribed period." 

*  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  112. 

8  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  113. 

«  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  114. 

7  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  115. 


ESTATES  UPON   LIMITATION  207 

surance  which  I  hold  on  my  own  life  be  appropriated  to  the  payment 
and  discharge  of  any  and  all  mortgages  then  existing  on  my  home- 
stead house  and  lot  on  Cedar  street,  in  said  Bangor,  so  that  said  home- 
stead may  be  free  from  all  incumbrances,  and  any  balance  to  be  applied 
to  pay  any  taxes  then  due  or  unpaid,  on  said  homestead,  and  any  bal- 
ance to  go  with  my  other  estate. 

"(2)  My  said  homestead  house  and  lot  aforesaid  I  give  and  devise 
tc>.my  unmarried  daughter,  Helen  S.  Mann,  for  and  during  her  natural 
life,  unless  she  shall  be  married,  in  which  case  her  life  estate  shall 
cease.  So  long  as  she  shall  live  and  remain  unmarried  she  is  to  have 
the  exclusive  right  of  occupation,  use,  and  enjoyment  of  said  home- 
stead, but  subject  to  the  duty  of  keeping  it  in  good  repair  at  her  ex- 
pense, and  paying  all  taxes  and  keeping  the  property  well  insured.  If 
all  parties  interested  see  fit  to  sell  the  property,  they  may  do  so,  in 
which  case  said  Helen  is  to  receive  the  net  income  from  the  proceeds 
of  sale,  the  same  to  be  well  invested  for  that  purpose;  and,  if  the 
buildings  are  burned  in  whole  or  part,  the  insurance  money  shall  be 
applied  to  repair  or  rebuild,  unless  all  agree  to  a  different  appropria- 
tion of  the  money,  viz.,  all  parties  interested. 

"(3)  All  other  estate,  real  and  personal,  of  all  kinds,  which  I  may 
own  or  possess  at  death,  including  the  remainder  of  my  homestead 
house  and  lot  aforesaid,  my  farm  on  the  'Odlin  Road,'  so  called,  and 
all  other  property,  I  give  in  equal  shares  to  my  three  children,  William 
E.  Mann,  Mrs.  Augusta  S.  Harden,  and  Helen  S.  Mann,  to  have  and 
to  hold  the  same  to  them,  and  their  heirs  and  assigns,  forever." 

After  the  death  of  the  testator,  Helen  S.  Mg,nn  married,  and  is  the 
defendant  in  this  suit. 

The  language  of  the  second  item  of  the  will  is  specially  brought  in 
question.  The  plaintiff  says  that  the  defendant's  "life  estate"  in  the 
homestead  was  terminated  by  her  marriage,  while  the  defendant  con- 
tends that  the  clause  limiting  her  exclusive  title  by  her  marriage  is 
void,  as  being  a  condition  in  restraint  of  marriage,  and  that  she  is  en- 
titled to  the  sole  use  and  occupation  of  the  homestead  during  her  natu- 
ral life. 

It  is  undoubtedly  an  established  rule  of  law  that,  even  with  respect 
to  devises  of  real  estate,  a  subsequent  condition  which  is  intended  to 
operate  in  general  and  unqualified  restraint  of  marriage,  or  the  natu- 
ral effect  of  which  is  to  create  undue  restraint  upon  marriage  and  pro- 
mote celibacy,  must  be  held  illegal  and  void,  as  contrary  to  the  prin- 
ciples of  sound  public  policy.  It  appears  from  the  early  English  cases 
that  this  doctrine  was  borrowed  by  the  English  ecclesiastical  courts 
from  the  Roman  civil  law,  which  declared  absolutely  void  all  condi- 
tions in  wills  restraining  marriage,  whether  precedent  or  subsequent, 
whether  there  was  any  gift  over  or  not.  But  the  courts  of  equity 
found  themselves  greately  embarrassed  between  their  anxiety  on  the 
one  hand  to  follow  the  ecclesiastical  courts,  and  their  desire  on  the 
other  to  give  more  heed  to  the  plain  intention  and  wish  of  the  testator 


208  CONDITIONAL   OR    QUALIFIED    ESTATES 

as  manifested  by  the  whole  will.  Thereupon  the  process  of  distinguish- 
ing commenced  for  the  purpose  of  preventing  obvious  hardships  aris- 
ing from  the  application  of  that  technical  rule  to  particular  cases.  As 
a  result  there  has  been  ingrafted  upon  the  doctrine  a  multitude  of 
curious  refinements  and  subtle  distinctions  respecting  real  and  personal 
estate,  conditions  and  limitations,  conditions  precedent  and  conditions 
subsequent,  gifts  with  and  without  valid  limitations  over,  and  the  ap- 
plication of  the  rule  to  widows  and  other  persons.  Indeed,  it  may  be 
said  of  the  decisions  upon  this  subject  with  even  more  propriety  than 
was  observed  by  Lord  Mansfield  in  regard  to  another  branch  of  law, 
that  "the  more  we  read,  unless  we  are  very  careful  to  distinguish, 
the  more  we  shall  be  confounded." 

The  whole  subject  as  to  what  conditions  in  restraint  of  marriage 
shall  be  regarded  as  valid  and  what  as  void  would  seem  to  be  involved 
in  great  uncertainty  and  confusion  both  in  England  and  in  this  coun- 
try. There  is  clearly  discernible,  however,  through  all  the  decisions  ' 
of  later  times,  an  anxiety  on  the  part  of  the  judges  to  limit  as  much 
as  possible  the  rule  adopted  from  the  civil  law.  "The  true  rule  upon 
the  subject  is,"  says  INIr.  Redfield,  "that  one  who  has  an  interest  in 
the  future  marriage  and  settlement  of  a  person  in  life  may  annex  any 
reasonable  condition  to  the  bequest  of  property  to  such  person,  al- 
though it  may  operate  to  delay  or  restrict  the  formation  of  the  mar- 
ried relation,  and  so  be  in  some  respect  in  restraint  of  marriage. 
*  *  *  Where  there  are  hundreds  of  conflicting  cases  upon  a  point, 
and  no  general  principle  running  through  them  by  which  they  can 
be  arranged  or  classified,  what  better  can  be  done  than  to  abandon 
them  all,  and  fall  back  upon  the  reason  and  good  sense  of  the  ques- 
tion, as  the  courts  have  of  late  attempted  to  do?"  2  Redf.  Wills, 
*290,  §  20,  and  note.  See,  also,  Id.  297,  and  2  Jarm.  Wills,  569.  Be- 
yond the  general  proposition  first  stated,  the  cases  seem  finally  to  re- 
solve themselves  for  the  most  part  into  the  mere  judgment  of  the 
court  upon  the  circumstances  of  each  particular  case.  2  Redf.  Wills, 
*297,  §  31 ;  2  Pom.  Eq.  Jur.  933 ;  Coppage  v.  Alexander's  Heirs,  2  B. 
Mon.  (Ky.)  313,  and  note  to  same,  38  Am.  Dec.  153. 

But  the  rule  was  so  far  modified  and  relaxed  that  conditions  an- 
nexed to  devises  and  legacies  restraining  widows  from  marrying  have 
almost  uniformly  been  pronounced  valid.  2  Pom.  Eq.  Jur.  supra. 
From  the  numerous  decisions  upon  the  subject  in  the  United  States, 
the  conclusion  is  fairly  to  be  drawn  that  such  conditions  will  be  up- 
held in  the  case  of  widows,  whether  there  is  a  gift  over  or  not.  2 
Tarm.  Wills,  p.  564,  note  29;  2  Redf.  Wills,  296;  Schouler,  Wills, 
603.  See,  also,  recent  cases  of  Knight  v.  Mahoney,  152  Mass.  523, 
25  N.  E.  971,  9  L.  R.  A.  573,  and  Nash  v.  Simpson,  78  Me.  142,  3 
Atl.  53. 

In  2  Redf.  Wills,  296,  the  author  says:  "We  apprehend  there  is  no 
substantial  reason,   either  in   law  or  morals,  why  a  man   should  be 


ESTATES  UPON  LIMITATION  209 

allowed  to  annex  an  unreasonable  condition  in  restraint  of  marriage, 
one  merely  in  terrorem,  in  case  of  a  wife,  more  than  of  a  child  or  any 
other  person,  in  regard  to  whose  settlement  in  life  he  may  fairly  be 
allowed  to  take  an  interest;  but  the  cases  certainly,  many  of  them, 
maintain  such  distinction." 

It  is  unnecessary,  however,  to  enter  upon  an  elaborate  discussion  of 
the  subject.  The  existence  of  the  rule  as  recognized  in  Randall  v. 
Marble,  69  Me.  310,  31  Am.  Rep.  281,  is  not  here  questioned.  In 
that  case  the  rule  was  applied  to  a  "crude  and  ill-defined"  proviso  in 
a  deed  of  real  estate.  We  have  no  occasion  to  question  the  sound- 
ness of  that  decision.  It  was  the  judgment  of  the  court  upon  a  par- 
ticular set  of  words  in  that  deed.  It  is  not  an  authority  to  control 
the  judgment  of  the  court  respecting  the  construction  of  an  entirely 
different  set  of  words  in  a  testamentary  gift  of  real  estate. 

There  is  a  recognized  distinction  between  conditions  in  restraint 
of  marriage  annexed  to  testamentary  dispositions,  and  restraints  on 
marriage  contained  in  the  very  terms  of  the  limitation  of  the  estate 
given. 

In  Heath  v.  Lewis,  3  De  Gex,  M.  &  G.  954,  (1853,)  a  testator  made 
a  gift  of  £30  a  year  to  an  unmarried  woman  during  the  term  of  her 
natural  life,  "if  she  shall  so  long  remain  unmarried."  Lord  Justice 
Knight  Bruce  said :  "It  must  be  agreed  on  all  hands  that  it  is,  by  the 
English  law,  competent  for  a  man  to  give  to  a  single  woman  an  an- 
nuity until  she  shall  die  or  be  married,  whichever  of  these  two  events 
shall  first  happen.  All  men  agree  that,  if  such  a  legatee  shall  marry, 
the  annuity  would  thereupon  cease.  'During  the  term  of  her  natural 
life,  if  she  so  long  remain  unmarried,'  is  the  technical  and  proper  lan- 
guage O'f  limitation,  as  distinguished  from  a  condition." 

Lord  Justice  Turner  said :  "It  may  either  be  a  gi-f t  for  life  defeated 
by  a  condition,  or  it  may  be  a  gift  to  her  so  long  as  she  remains  un- 
married, that  is,  for  life,  if  she  be  so  long  unmarried;  and  the  ques- 
tion is  therefore  purely  one  of  intention,  in  which  of  the  two  senses 
the  words  were  used." 

Jones  V.  Jones,  1  O.  B.  Div.  279,  (1876,)  is  an  important  authority. 
It  related  to  a  devise  of  real  estate,  the  testator's  language  being  as 
follows :  "Provided  said  Mary  remains  in  her  present  state  of  sin- 
gle woman;  otherwise,  if  she  binds  herself  in  wedlock  she  is  liable 
to  lose  her  share  of  the  said  property  immediately,  and  her  share 
to  be  possessed  by  the  other  parties  mentioned."  Blackburn,  J.,  said : 
"A  number  of  cases  have  been  referred  to,  from  which  it  appears 
that  the  courts  of  equity  have  adopted  from  the  ecclesiastical  or  civil 
law,  it  is  unnecessary  to  say  to  what  extent,  the  rule  that  conditions  in 
general  restraint  of  marriage  are  invalid.  The  attempt  to  escape  from 
the  consequences  of  this  rule  led  to  decisions  in  which  a  great  many 
nice  distinctions  were  established  as  to  whether  the  bequest  amcMnted 
Bubd.Cas.Real  Prop. — 14 


210  CONDITIONAL    OR   QUALIFIED    ESTATES 

to  a  condition  or  only  a  limitation.  If  this  point  had  been  as  to  a  be- 
quest of  personal  estate,  it  would  have  been  necessary  to  look  at  these 
decisions.  But  this  is  a  devise  of  land  which  is  governed  by  the  rules 
of  the  common  law,  and  it  is  admitted  that  there  is  no  case  which  ex- 
tends the  rule  as  to  conditions  or  limitations  to  devises  of  land.  There 
is,  I  admit,  strong  authority  that,  when  the  object  of  the  will  is  to  re- 
strain marriage  and  promote  celibacy,  the  courts  will  hold  such  a 
condition  to  be  contrary  to  public  policy,  and  void.  But  here  there 
appears  to  be  no  intention  to  promote  celibacy.  Now  here,  I  think, 
when  one  sees  the  scope  of  the  testator's  dispositions,  it  comes  to  this : 
'I  have  left  to  three  women  enough  to  live  upon,  and  if  one  of  them 
dies  I  bring  in  Jemima  and  Mary.  But  if  Mary  (I  suppose  as  the 
youngest  she  was  most  likely  to  change  her  state)  happens  to  marry, 
her  husband  must  maintain  her,  and  her  share  shall  pass  to  the  rest.' 
Now,  if  he  had  said  this  in  express  words,  could  it  have  been  con- 
tended that  his  provision  was  contrary  to  public  policy?  I  think  not. 
It  is  admitted  that  the  limitation  to  Mary  until  she  marries  is  per- 
fectly good,  but  it  is  said  that  here,  because  the  disposition  is  in  the 
form  of  a  condition,  it  is  bad." 

Lush,  J.,  said :  "We  ought  to  take  the  words  in  such  a  sense  as  to 
carry  out  the  object  of  the  testator,  unless  it  is  illegal;  and,  as  I 
read  the  words,  the  testator  only  meant  to  provide  for  her  while  she 
was  unmarried.  There  is  nothing  in  these  words  which  compels  us 
to  think  it  was  the  testator's  object  that  this  niece  should  never  marry 
at  all;  he  probably  supposed  that  she  would  be  maintained  by  her 
husband,  and  did  not  mean  to  provide  for  husband  and  wife."  See, 
also,  Hotz's  Estate,  38  Pa.  422,  80  Am.  Dec.  490;  Cornell  v.  Lovett's 
Ex'rs,  35  Pa.  100;  Graydon  v.  Graydon,  23  N.  J.  Eq.  230;  Courter  v. 
Stagg,  27  N.  J.  Eq.  305. 

It  is  the  enlightened  policy  of  courts  of  equity,  when  not  restrained 
by  compulsory  rules,  to  seek  to  discover  the  intention  of  the  testator 
from  the  whole  instrument,  rather  than  from  any  particular  form  of 
words. 

In  the  case  before  us,  the  testator  makes  careful  provision  in  the 
first  item  of  the  will  for  the  appropriation  of  so  much  of  the  pro- 
ceeds of  his  life  insurance  as  might  be  necessary  to  discharge  all  mort- 
gages on  the  homestead.  In  the  second  item  he  devises  the  homestead 
to  his  unmarried  daughter  "for  and  during  her  natural  life,  unless 
she  shall  be  married,  in  which  case  her  life  estate  shall  cease.  So 
long  as  she  shall  live  and  remain  unmarried  she  is  to  have  the  exclu- 
sive right  of  occupation,  use,  and  enjoyment  of  said  homestead."  In 
case  all  parties  interested  agree  to  a  sale  of  the  property,  this  daughter 
is  to  receive  the  net  income  of  the  proceeds,  "the  same  to  be  well  in- 
vested for  that  purpose;"  and,  in  the  event  of  the  destruction  of  the 
Luildings  by  fire,  the  insurance  money  shall  be  applied  in  rebuilding 


ESTATES  UPON  LIMITATION  211 

them.  In  the  third  item  he  gives  the  residue,  including  the  remainder 
of  his  homestead,  to  his  three  children  in  equal  shares. 

Here,  then,  is  the  case  of  a  parent  who  has  a  recognized  right,  and 
was  under  a  moral  obligation,  to  interest  himself  in  the  settlement  of 
his  daughter.  To  the  ordinary  mind,  untrammeled  by  the  "medise- 
valism  of  the  law,"  there  is  nothing  in  the  will  indicating  any  other 
thought  or  feeling  than  an  affectionate  regard  for  the  welfare  and 
happiness  of  a  beloved  daughter,  and  an  anxious  desire  to  provide 
for  her  a  permanent  and  comfortable  home.  The  modern  court,  free 
from  the  incubus  of  arbitrary  legal  dogmas,  must  fail  to  discover  in 
the  language  of  this  will  any  suggestion  of  a  purpose  on  the  part  of 
the  father  to  impose  a  condition  in  terrorem  in  restraint  of  his  daugh- 
ter's marriage.  It  discloses  no  other  disposition  than  a  praiseworthy 
desire  to  secure  to  the  daughter  the  continued  occupation  and  enjoy- 
ment of  the  old  homestead  until,  by  reason  of  her  marriage,  she  should 
cease  to  need  it;  then  she  was  to  share  equally  with  her  sister  and 
brother  in  the  entire  estate.  It  is  manifest  from  the  whole  tenor  of 
the  will  that  nothing  was  more  remote  from  the  real  purpose  of  the 
testator  than  the  idea  of  discouraging  the  marriage  of  this  daughter. 
The  intention  was  not  to  promote  celibacy,  but  simply  to  furnish  sup- 
port until  other  means  should  be  provided.  Because  of  the  inadvert- 
ent use  by  the  scrivener  of  the  word  "unJess,"  this  court  is  not  com- 
pelled to  impose  upon  this  instrument  an  intention  which  it  is  mani- 
fest from  the  context  the  testator  never  had.  There  is  no  such  in- 
flexible rule ;  the  rights  of  the  parties  are  not  to  be  determined  by  an 
application  of  such  a  Procrustean  method.  The  provision  is  in  no 
respect  contra  bonos  mores.  It  is  not  violative  of  any  principle  of 
sound  policy ;  and,  if  it  is  here  necessary  and  proper  to  recognize  and 
maintain  the  distinction  between  a  limitation  and  a  condition  subse- 
quent, the  language  of  this  will  should  be  held  to  constitute  a  valid 
limitation,  and  not  an  illegal  condition. 

The  defendant's  exclusive  right  to  the  possession  and  enjoyment  of 
the  entire  homestead  ceased  upon  her  marriage.     Decree  accordingly. 

Peti;rs,  C.  J.,  and  Virgin,  Li£be;y,  Emery,  and  Foster,  ]].,  con- 
curred. 


212  CONDITIONAL   OB  QUALIFIED   ESTATES 


VI.  Estates  upon  Conditional  Limitation  • 


PROPRIETORS  OF  THE  CHURCH  IN  BRATTLE  SQUARE 

V.  GRANT. 

(Supreme  Judicial  Court  of  Massachusetts,  1855.    3  Gray,  142,  63  Am.  Dec.  725.) 

Bill  in  equity  by  the  Proprietors  of  the  Church  in  Brattle  Square, 
praying  for  leave  to  sell  the  parsonage  house  in  Court  Street,  held 
by  them  under  the  following  devise  in  the  will  of  Lydia  Hancock: 
"I -give  and  bequeath  unto  Messrs.  Timothy  Newell,  Isaac  Smith  and 
Ebenezer  Storer,  present  deacons  of  the  Church  of  Christ  in  Brattle 
Street  in  Boston,  whereof  the  Rev.  Mr.  Samuel  Cooper  is  minister, 
and  to  their  successors  in  that  office,  ■  all  that  brick  dwelling-house 
and  land  situated  in  Queen  Street,  lately  improved  by  my  honored 
father,  Daniel  Henchman,  Esquire,  as  his  mansion  house,  to  hold  the 
same,  at  and  immediately  upon  the  decease  of  my  mother,  mito  said 
Timothy  Newell,  Isaac  Smith  and  Ebenezer  Storer,  and  to  the  deacons 
of  the  said  church  for  the  time  being,  forever,  upon  this  express 
condition  and  limitation,  that  is  to  say,  that  the  minister  or  eldest 
minister  of  said  church  shall  constantly  reside  and  dwell  in  said  house, 
during  such  time  as  he  is  minister  of  said  church ;  and  in  case  the 
same  is  not  improved  for  this  use  only,  I  then  declare  this  bequest 
to  be  void  and  of  no  force,  and  order  that  said  house  and  land  then 
revert  to  my  estate,  and  I  give  the  same  to  my  nephew,  John  Han- 
cock, Esquire,  and  to  his  heirs  forever."  The  said  John  Hancock  was 
also  made  residuary  devisee.  The  will  was  dated  October  30th,  1765, 
and  proved  in  the  probate  court  in  the  21st  of  November,  1777. 

The  bill  alleged  that  from  the  decease  of  Mrs.  Hancock  the  minis- 
ter or  eldest  minister  of  said  church  had  constantly  dwelt  and  re- 
sided in  said  house,  during  such  time  as  he  was  minister  of  said 
church,  and  the  house  and  land  had  been  improved  for  that  use  only  ; 
that  the  sum  assessed  for  taxes  upon  said  estate  had  been  and  was 
continually  increasing,  and  the  estate  required,  and  would  from  time 
to  time  require,  the  expenditure  of  large  sums  of  money  to  keep  it 
in  repair;  that  a  sale  of  the  estate  was  necessary  to  the  beneficial  ac- 
complishment of  the  intent  of  the  devise;  that  the  present  deacons 
of  the  church,  who  now  hold  the  legal  estate  in  the  premises,  were 
unwilling  to  join  in  making  sale  thereof  without  the  sanction  and  de- 
cree of  this  court,  because  John  Hancock  and  others,  heirs  at  law  of 
the  John  Hancock  named  in  the  will,  pretended  that  the  estate  was 
devised  upon  the  limitation  and  condition  that  the  minister  or  eldest 
minister  of  said  church  should  constantly  dwell  and  reside  in  said 

•  For  discussipn  of  principles,  see  Burdick,  Real  Prop.  §  116. 


ESTATES    UPON    CONDITIONAL   LIMITATION  213 

house  during  such  time  as  he  should  be  minister  of  said  church,  and 
that  in  case  the  same  should  not  be  improved  for  that  use  only,  the 
testatrix  ordered  that  the  said  house  and  land  should  revert  to  her 
estate,  and  gave  and  devised  the  same  to  the  said  John  Hancock 
and  to  his  heirs  forever,  and  so,  if  the  said  house  and  land  should  be 
sold,  the  same  would  be  forfeited  and  would  revert  to  the  heirs  of 
the  said  John  Hancock ;  but  the  plaintiffs  charged  the  contrary  thereof 
to  be  the  truth,  and  that  the  devise  was  not  upon  any  such  condition 
or  limitation,  and  that  the  supposed  devise  over  to  said  Hancock  was 
altogether  void  and  of  no  effect;  and  that,  if  any  forfeiture  of  said 
estate  could  or  should  at  any  time  be  worked,  the  legal  title  would  not 
vest  in  the  heirs  of  said  John  Hancock,  but  in  certain  other  persons, 
heirs  at  law  of  the  testatrix ;  and  that  if  the  estate,  should,  in  the 
opinion  of  this  court,  be  deemed  to  have  been  devised  and  to  be  still 
holden  by  said  deacons  upon  any  such  limitation  or  condition,  a  sale 
of  the  estate  had  become  necessary  and  expedient  to  effect  the  ob- 
jects of  the  trust,  as  contemplated  by  the  testatrix. 

The  deacons  and  minister  of  the  church,  John  Hancock  and  others, 
heirs  of  John  Hancock  named  in  the  will,  and  the  heirs  at  law  of 
the  testatrix,  were  made  parties  to  the  bill.  The  bill  prayed  for  a 
discovery,  for  a  decree  for  a  sale  of  the  estate  and  an  investment 
and  application  of  the  proceeds  in  such  manner  as  should  best  ef- 
fect the  objects  of  the  trust,  and  for  further  relief. 

John  Hancock  and  William  H.  Spear,  two  of  the  heirs  at  law  of 
John  Hancock  named  in  the  will,  filed  answers,  in  which  they  alleged 
that  the  condition  and  limitation  of  the  devise  under  which  the  plain- 
tiffs held  was  valid ;  two  other  heirs  of  said  John  Hancock  demurred 
on  the  ground  that  they  were  improperly  made  parties ;  and  all  the 
other  defendants  suffered  the  bill  to  be  taken  for  confessed. 

BiGKivOW,  J.  The  interesting  and  important  questions  involved  in 
the  present  case  are  now  for  the  first  time  brought  to  our  considera- 
tion. In  a  suit  in  equity  between  the  same  parties  which  was  pend- 
ing several  years  ago  in  this  court,  we  were  not  called  upon  to  give 
any  construction  to  the  clause  in  the  will  of  Lydia  Hancock,  under 
which  the  deacons  of  the  church  in  Brattle  Square  and  their  succes- 
sors hold  the  estate  now  in  controversy.  The  object  of  that  suit  was 
widely  different  from  that  of  the  present.  The  plaintiffs  then  as- 
sumed, by  implication,  that  they  were  bound  by  the  "condition  and 
limitation"  annexed  to  the  .devise,  and  the  validity  of  the  gift  over  on 
breach  of  the  condition  was  not  called  in  question  by  them.  The 
single  purpose  then  sought  to  be  accomplished  was  to  obtain  authority 
to  sell  the  estate,  solely  on  the  ground  that,  from  various  causes,  the 
occupation  and  use  of  the  premises  for  a  private  dwelling,  and  espe- 
cially for  a  parsonage,  in  the  manner  prescribed  in  the  will,  had  be- 
come onerous  and  impracticable;  and  the  prayer  of  the  bill  was  that, 
if  a  sale  was  authorized,  the  proceeds  might  be  invested  in  other  real 


214  CONDITIONAL    OR    QUALIFIED    ESTATES 

estate,  to  be  held  on  the  same  trusts  and  upon  the  Hke  condition  and 
limitation  as  are  set  out  and  prescribed  in  the  will  of  the  testatrix, 
relative  to  the  estate  therein  devised  to  the  deacons  and  their  suc- 
cessors. It  is  quite  obvious  that,  on  a  bill  thus  framed,  no  question 
could  arise  concerning  the  respective  titles  of  the  parties  to  the  suit, 
under  the  devise.  They  were  not  put  in  issue  by  the  pleadings,  and 
no  decision  was  in  fact  made  in  regard  to  them.  That  suit  was  deter- 
mined solely  upon  the  ground  that  the  case  made  by  the  plaintiffs 
was  not  such  as  to  warrant  the  court  in  making  a  decree  for  a  sale  of 
the  premises  upon  the  reasons  and  for  the  causes  alleged  in  that  bill,, 
and  above  stated. 

The  case  is  now  brought  before  us  upon  allegations  and  denials 
which  directly  involve  the  construction  of  the  devise,  and  render  it 
necessary  to  determine  the  respective  rights  of  the  devisees  and  heirs 
at  law  to  the  estate  in  controversy.  In  order  to  decide  the  questions 
thus  raised,  it  is  material  to  ascertain,  in  the  outset,  the  legal  nature 
and  quality  of  the  estate  which  is  created  by  the  terms  of  the  devise 
to  Timothy  Newell  and  others,  deacons  of  the  church  in  Brattle  Street. 
If  the  gift  had  been  solely  to  the  deacons  of  the  church  in  Brattle 
Street  and  their  successors  forever,  without  any  condition  annexed 
thereto  concerning  its  use  and  occupation,  it  would,  without  doubt, 
have  vested  in  them  the  absolute  legal  estate  in  fee.  By  the  provincial 
statute  of  28  G.  2,  which  was  in  force  at  the  time  of  the  death  of  the 
testatrix,  the  deacons  of  all  Protestant  churches  were  made  bodies  cor- 
porate, with  power  to  take  in  succession  all  grants  and  donations, 
both  of  real  and  personal  estate.  Anc.  Chart.  605.  The  words  of 
the  devise  were  apt  and  sufficient  to  create  a  fee  in  the  deacons  and 
their  successors,  and  they  were  legally  competent  to  take  and  hold 
such  an  estate.  It  therefore  becomes  necessary  to  consider  the  nature 
and  effect  of  the  condition  annexed  to  the  gift ;  how  far  it  qualifies 
the  fee  devised  to  the  deacons  and  their  successors ;  and  what  was 
the  interest  or  estate  devised  over  John  Hancock  and  his  heirs  for- 
ever, upon  a  failure  to  comply  with  and  perform  the  condition.  It  will 
aid  in  the  solution  of  these  questions,  if  we  are  able  in  the  first  place 
to  determine,  with  clearness  and  accuracy,  within  what  class  or  divi- 
sion of  conditional  and  contingent  estates  the  devise  in  question  falls. 

Strictly  speaking,  and  using  words  in  their  precise  legal  import,  the 
devise  in  question  does  not  create  simply  an  estate  on  condition. 
By  the  common  law,  a  condition  annexed  to  real  estate  could  be  re- 
served only  to  the  grantor  or  devisor,  and  his  heirs.  Upon  a  breach 
of  the  condition,  the  estate  of  the  grantee  or  devisee  was  not  ipso 
facto  terminated,  but  the  law  permitted  it  to  continue  beyond  the 
lime  when  the  contingency  upon  which  it  was  given  or  granted  hap- 
pened, and  until  an  entry  or  claim  was  made  by  the  grantor  or  his 
heirs,  or  the  heirs  of  the  devisor,  who  alone  had  the  right  to  take 
advantage  of  a  breach.    2  Bl.  Com.  156;  4  Kent,  Com.  (6th  Ed.)  122, 


ESTATES    UPON   CONDITIONAL   LIMITATION  215 

127.  Hence  arose  the  distinction  between  a  condition  and  a  condi- 
tional limitation.  A  condition,  followed  by  a  limitation  over  to  a 
third  person  in  case  the  condition  be  not  fulfilled,  or  there  be  a  breach 
of  it,  is  termed  a  conditional  limitation.  A  condition  determines  an 
estate  after  breach,  upon  entry  or  claim  by  the  grantor  or  his  heirs, 
or  the  heirs  of  the  devisor.  A  limitation  marks  the  period  which 
determines  the  estate,  without  any  act  on  the  part  of  him  who  has  the 
next  expectant  interest.  Upon  the  happening  of  the  prescribed  con- 
tingency, the  estate  first  limited  comes  at  once  to  an  end,  and  the  sub- 
sequent estate  arises.  If  it  were  otherwise,  it  would  be  in  the  power 
of  the  heir  to  defeat  the  limitation  over,  by  neglecting  or  refusing  to 
enter  for  breach  of  the  condition.  This  distinction  was  originally  in- 
troduced in  the  case  of  wills,  to  get  rid  of  the  embarrassment  arising 
from  the  rule  of  the  ancient  common  law,  that  an  estate  could  not 
be  limited  to  a  stranger,  upon  an  event  which  went  to  abridge  or 
destroy  an  estate  previously  limited.  A  conditional  limitation  ij,  there-_ 
fore  of  a  mixed  nature,  partaking  both  of  a  condition  and  of  a  limi- 
tation; of  a  condition,  because  it  defeats  the  estate  previously  lim- 
ited; and  of  a  limitation,  because,  upon  the  happening  of  the  contin- 
gency, the  estate  passes  to  the  person  having  the  next  expectant  in- 
terest, without  entry  of  claim. 

Tkere-is  a.  further  distinction  in  the  nature  of  estates  on  condi- 
tion, and  those  created  by  conditional  limitation,  which  it  may  be 
material  to  notice.  Where  an  estate  in  fee  is  created  on  condition, 
the  entire  interest  does  not  pass  out  of  the  grantor  by  the  same  instru- 
ment or  conveyance.  All  that  remains,  after  the  gift  or  grant  takes 
effect,  continues  in  the  grantor,  and  goes  to  his  heirs.  This  is  the 
right  of  entry,  as  we  have  already  seen,  which,  from  the  nature  of  the 
grant,  is  reserved  to  the  grantor  and  his  heirs  only,  and  which  gives 
them  the  right  to  enter  as  of  their  old  estate,  upon  the  breach  of  the 
condition.  This  possibility  of  reverter,  as  it  is  termed,  arises  in  the 
grantor  or  devisor  immediately  on  the  creation  of  the  conditional 
estate.  It  is  otherwise  where  the  estate  in  fee  is  limited  over  to  a 
third  person  in  case  of  a  breach  of  the  condition.  Then  the  entire 
estate,  by  the  same  instrument,  passes  out  of  the  grantor  or  devisor. 
The  first  estate  vests  immediately,  but  the  expectant  interest  does  not 
take  effect  until  the  happening  of  the  contingency  upon  which  it  was 
limited  to  arise.  But  both  owe  their  existence  to  the  same  grant  or 
gift;  they  are  created  uno  flatu;  and  being  an  ultimate  disposition 
of  the  entire  fee,  as  well  after  as  before  the  breach  of  the  condition, 
there  is  nothing  left  in  the  grantor  or  devisor  or  his  heirs.  The  right 
or  possibility  of  reverter,  which,  on  tlie  creation  of  an  estate  in  fee 
on  condition  merely,  would  remain  in  him,  is  given  over  by  the  limi- 
tation which  is  to  take  effect  on  the  breach  of  the  condition. 

One  material  difference  therefore,  between  an  estate  in  fee  on  con- 
dition and  on  a  conditional  limitation,  is  briefly  this ;   that  the  former 


216  CONDITIONAL    OR    QUALIFIED    ESTATES 

leaves  in  the  grantor  a  vested  right,  which,  by  its  very  nature,  is  re- 
served to  him,  as  a  present  existing  interest,  transmissible  to  his  heirs ; 
while  the  latter  passes  the  whole  interest  of  the  grantor  at  once,  and 
creates  an  estate  to  arise  and  vest  in  a  third  person,  upon  a  contin- 
gency, at  a  future  and  uncertain  period  of  time.  A  grant  of  a  fee 
on  condition  only  creates  an  estate  of  a  base  or  determinable  nature 
in  the  grantee,  leaving  the  right  or  possibility  of  reverter  vested  in 
the  grantor.  Such  an  interest  or  right  in  the  grantor,  as  it  does  not 
arise  and  take  effect  upon  a  future  uncertain  or  remote  contingency, 
is  not  liable  to  the  objection  of  violating  the  rule  against  perpetuities, 
in  the  same  degree  with  other  conditional  and  contingent  interests 
in  real  estate  of  an  executory  character.  The  possibility  of  reverter, 
being  a  vested  interest  in  real  property,  is  capable  at  all  times  of 
being  released  to  the  person  holding  the  estate  on  condition  or  his 
grantee,  and,  if  so  released,  vests  an  absolute  and  indefeasible  title 
thereto.  The  grant  or  devise  of  a  fee  on  condition  does  not  therefore 
fetter  and  tie  up  estates,  so  as  to  prevent  their  alienation,  and  thus 
contravene  the  policy  of  the  law  which  aims  to  secure  the  free  and 
unembarrassed  disposition  of  real  property.  It  is  otherwise  with  gifts 
or  grants  of  estates  in  fee,  with  limitations  over  upon  a  condition  or 
event  of  an  uncertain  or  indeterminate  nature.  The  limitation  over 
being  executory,  and  depending  on  a  condition,  or  an  event  which 
may  never  happen,  passes  no  vested  interest  or  estate.  It  is  impos- 
sible to  ascertain  in  whom  the  ultimate  right  to  the  estate  may  vest, 
or  wliether  it  will  ever  vest  at  all,  and  therefore  no  conveyance  or 
mode  of  alienation  can  pass  an  absolute  title,  because  it  is  wholly 
uncertain  in  whom  the  estate  will  vest  on  the  happening  of  the  event 
or  breach  of  the  condition  upon  which  the  ulterior  gift  is  to  take 
effect. 

Bearing  in  mind  these  distinctions,  it  is  obvious  that  the  devise  in 
question  was  not  the  gift  of  an  estate  on  a  condition  merely,  but  it 
also  created  a  limitation  over,  on  the  happening  of  the  prescribed  con- 
tingency, to  a  third  person  and  his  heirs  forever.  It  was  therefore 
a  conditional  limitation,  under  which  general  head  or  division  may  be 
comprehended  every  limitation  which  is  to  vest  an  interest  in  a  third 
person,  on  condition,  or  upon  an  event  which  may  or  may  not  happen. 
Such  limitations  include  certain  estates  in  remainder,  as  well  as  gifts 
and  grants,  which,  when  made  by  will,  are  termed  executory  devises, 
and  when  contained  in  conveyances  to  uses,  assume  the  name  of  spring- 
ing or  shifting  uses.  1  Preston  on  Estates,  §§  40,  41,  93;  4  Kent, 
Com.  (6th  Ed.)  128,  note;  2  Ecarne,  Cont.  Rem.  (10th  Ed.)  50;  1 
Pow.  Dev.  192,  and  note  4;    1  Shep.  Touch.  126. 

That  the  devise  in  question  does  not  create  a  contingent  remainder 
in  John  Hancock  and  his  heirs  is  very  clear,  upon  familiar  and  well 
established  principles.  There  is,  in  the  first  place,  no  particular  estate 
upon  the  natural  determination  of  which  the  limitation  over  is  to  take 


ESTATES   UPON   CONDITIONAL   LIMITATION  217 

effect.  The  essence  of  a  remainder  is,  that  it  is  to  arise  immediately 
on  the  termination  of  the  particular  estate  by  lapse  of  time  or  other 
determinate  event,  and  not  in  abridgment  of  it.  Thus  a  devise  to  A. 
for  twenty  years,  remainder  to  B.  in  fee,  is  the  most  simple  illustration 
of  a  particular  estate  and  a  remainder.  The  limitation  over  does  not 
arise  and  take  effect  until  the  expiration  of  the  period  of  twenty  years, 
when  the  particular  estate  comes  to  an  end  by  its  own  limitation.  So 
a  gift  to  A.  until  C.  returns  from  Rome,  and  then  to  B.  in  fee,  consti- 
tutes a  valid  remainder,  because  the  particular  estate,  not  being  a  fee, 
is  made  to  determine  upon  a  fixed  and  definite  event,  upon  the  hap- 
pening of  which  it  comes  to  its  natural  termination.  But  if  a  gift 
be  to  A.  and  his  heirs  till  C.  returns  from  Rome,  then  to  B.  in  fee, 
the  limitation  over  is  not  good  as  a  remainder,  because  the  precedent 
estate,  being  an  estate  in  fee,  is  abridged  and  brought  to  an  abrupt 
termination  by  the  gift  over  on  the  prescribed  contingency.  One  of 
the  tests,  therefore,  by  which  to  distinguish  between  estates  in  remain- 
der and  other  contingent  and  conditional  interests  in  real  property, 
is,  that  where  the  event,  which  gives  birth  to  the  ulterior  limitation, 
determines^  and  breaks  off  the  preceding  estate  before  its  natural  ter- 
mination, or  operates  to  abridge  it,  the  limitation  over  does  not  create 
a  remainder,  because  it  does  not  wait  for  the  regular  expiration  of 
the  preceding  estate.  1  Jarman  on  Wills,  780;  4  Kent,  Com.  197. 
Besides,  wlierever  the  gift  is  of  a  fee,  there  cannot  be  a  remainder, 
although  the  fee  may  be  a  qualified  or  determinable  one.  The  fee 
is  the  whole  estate.  When  once  granted,  there  is  nothing  left  in  the 
donor  but  a  possibility  or  right  of  reverter,  which  does  not  constitute 
an  actual  estate.  4  Kent,  Com.  10,  note ;  Martin  v.  Strachan,  5  T.  R. 
107,  note;  1  Jarman  on  Wills,  792.  All  the  estate  vests  in  the  first 
grantee,  notwithstanding  the  qualification  annexed  to  it.  If,  there- 
fore, the  prior  gift  or  grant  be  of  a  fee,  there  can  be  neither  particu- 
lar estate  nor  remainder;  there  is  no  particular  estate,  which  is  an 
estate  less  than  a  fee ;  and  no  remainder,  because,  the  fee  being  ex- 
hausted by  the  prior  gift,  there  is  nothing  left  of  it  to  constitute  a 
remainder.  Until  the  happening  of  the  contingency,  or  a  breach  of  the 
condition  by  which  the  precedent  estate  is  determined,  it  retains  all 
the  characteristics  and  qualities  of  an  estate  in  fee.  Although  de- 
feasible, it  is  still  an  estate  in  fee.  The  prior  estate  may  continue 
forever,  it  being  an  estate  of  inheritance,  and  liable  only  to  determine 
on  an  event  which  may  never  happen.  For  this  reason,  the  rule  of 
the  common  law  was  established,  that  a  remainder  could  not  be  lim- 
ited after  a  fee.  In  the  present  case,  the  devise  was,  as  we  have 
already  stated,  a  gift  to  the  deacons  and  their  successors  forever ;  and 
they  being  by  statute  a  quasi  corporation,  empowered  to  take  and  hold, 
grants  in  fee,  it  vested  in  them,  ex  vi  termini,  an  estate  in  fee,  quali- 
fied and  determinable  by  a  failure  to  comply  with  the  prescribed  con- 


218  CONDITIONAL    OR    QUALIFIED    ESTATES 

dition.  The  limitation  over,  therefore,  to  John  Hancock  and  his  heirs 
could  not  take  effect  as  a  remainder. 

It  necessarily  results  from  these  views  of  the  nature  and  quality  of 
conditional  and  contingent  estates,  as  applicable  to  the  devise  in  ques- 
tion, that  the  limitation  of  the  estate  over  to  John  Hancock  and  his 
heirs,  after  the  devise  in  fee  to  the  deacons  and  their  successors,  is  a 
conditional  limitation,  and  must  take  effect,  if  at  all,  as  an  executory 
devise.  The  original  purpose  of  executory  devises  was  to  carry  into 
effect  the  will  of  the  testator,  and  give  effect  to  limitations  over,  which 
could  not  operate  as  contingent  remainders,  by  the  rules  of  the  com- 
mon law.  Indeed,  the  general  and  comprehensive  definition  of  an 
executory  devise  is  a  limitation  by  will  of  a  future  estate  or  interest 
in  land,  which  cannot,  consistently  with  the  rules  of  law,  take  eft'ect 
as  a  remainder.  Every  devise  to  a  person  in  derogation  of,  or  sub- 
sitution  for,  a  preceding  estate  in  fee  simple,  is  an  executory  devise. 
4  Kent,  Com.  264 ;  1  Jarman  on  Wills,  778 ;  Lewis  on  Perp.  72 ;. 
6  Cruise,  Dig.  tit.  38,  c.  17,  §§  1,  2;  Purefoy  v.  Rogers,  2  Saund.  388a, 
and  note.  Thus  a  limitation  to  A.  and  his  heirs,  and  if  he  die  un- 
der the  age  of  twenty  one  years,  then  to  B.  and  his  heirs,  is  an  execu- 
tory devise,  because  it  is  a  limitation  of  an  estate  over  after  an  estate 
in  fee.  This,  by  the  rules  of  the  ancient  common  law,  would  have 
been  void,  for  the  reason  that  they  did  not  permit  any  limitation  over 
after  the  grant  of  a  previous  fee.  Whenever,  therefore,  a  devisor 
disposes  of  the  whole  fee  in  an  estate  to  one  person,  but  qualifies  this 
disposition,  by  giving  the  estate  over,  upon  breach  of  a  condition,  or 
happening  of  a  contingency,  to  some  other  person,  this  creates  an 
executory  devise.  4  Kent,  Com.  268;  6  Cruise,  Dig.  tit.  38,  c.  17,  §  2; 
Bac.  Ab.  Devise,  I;    1  Fearne,  Cont.  Rem.  399. 

In  the  case  at  bar,  the  devise  is  to  the  deacons  and  their  successors 
in  this  officer  forever.  By  itself,  this  gave  to  them  an  absolute  estate 
in  fee  simple;  but  the  gift  in  fee  was  qualified  and  abridged  by  the 
condition  annexed,  and  by  the  limitation  over  to  John  Hancock  and 
his  heirs.  From  the  rules  and  principles  which  we  have  been  con- 
sidering, it  would  seem  to  be  very  clear  {hat  the  devise  in  question 
did  not  create  an  estate  on  condition,  because  the  entire  fee  passed  out 
of  the  devisor  by  the  will ;  no  right  of  entry  for  breach  of  the  con- 
dition was  reserved,  either  directly  or  by  implication,  to  herself  or 
her  heirs,  but  upon  the  prescribed  contingency  it  was  devised  over  to 
a  third  person  in  fee.  It  did  not  create  an  estate  in  remainder,  be- 
cause there  was  no  particular  estate  which  was  first  to  be  determined 
by  its  own  limitation  before  the  gift  over  took  effect,  and  because,  the 
prior  gift  being  of  the  entire  fee,  there  was  no  remainder,  inasmuch 
as  the  prior  estate  might  continue  forever.  It  did  create  an  executory 
devise,  because  it  was  a  limitation  by  will  of  a  fee  after  a  fee,  which, 
by  the  rules  of  law,  could  not  take  effect  as  a  remainder. 

This  being  the  nature  of  the  devise  to  John  Hancock  and  his  heirs. 


ESTATES    UPON    CONDITIONAL   LIMITATION  211) 

4 

it  remains  to  be  considered  whether  there  is  anything,  in  the  nature 
of  the  gift  over,  which  renders  it  invahd,  and  if  so,  the  effect  of  ita 
invaHdity  upon  the  prior  estate  devised  to  the  deacons  and  their  suc- 
cessors. Upon  the  first  branch  of  this  inquiry,  the  only  question 
raised  is,  whether  the  gift  over  is  not  made  to  take  effect  upon  a  con- 
tingency which  is  too  remote,  as  violating  the  well  established  and  sal- 
utary rule  against  perpetuities.  Executory  devises  in  their  nature  tend 
to  perpetuities,  because  they  render  the  estate  inalienable  during  the 
period  allowed  for  the  contingency  to  happen,  though  all  mankind 
should  join  in  the  conveyance.  They  cannot  be  aliened  or  barred  by 
any  mode  of  conveyance,  whether  by  fine,  recovery  or  otherwise.  4 
Kent,  Com.  266;  2  Saund.  388  a,  note.  Hence  the  necessity  of  fixing 
some  period  beyond  which  such  limitations  should  not  be  allowed.  It 
has  therefore  long  been  the  settled  rule  in  England,  and  adopted  as 
part  of  the  common  law  of  this  commonwealth,  that  all  limitations,  by 
way  of  executory  devise,  which  may  not  take  effect  within  the  term 
of  a  life  or  lives  in  being  at  the  death  of  the  testator,  and  twenty 
one  ^'ears  afterwards,  as  a  term  in  gross,  or,  in  case  of  a  child  en 
ventre  sa  mere,  twenty  one  years  and  nine  months,  are  void  as  too 
remote,  and  tending  to  create  perpetuities.  4  Kent,  Com.  267 ;  1  Jar- 
man  on  Wills,  221;  4  Cruise,  Dig.  tit.  32,  c.  24,  §  18;  Nightingale  v. 
Burrell,  15  Pick.  111.  See,  also,  Cadell  v.  Palmer,  1  CI.  &  Fin.  Z72, 
421,  423,  wdiich  contains  a  very  full  and  elaborate  history  and  discus- 
sion of  the  cases  on  this  subject.  In  the  application  of  this  rule,  in 
order  to  test  the  legality  of  a  limitation,  it  is  not  sufficient  that  it  be 
capable  of  taking  etfect  within  the  prescribed  period ;  it  must  be  so 
framed  as  ex  necessitate  to  take  effect,  if  at  all,  within  that  time.  If. 
therefore,  a  limitation  is  made  to  depend  upon  an  event  which  may 
happen  immediately  after  the  death  of  the  testator,  but  which  may  not 
occur  until  after  the  lapse  of  the  prescribed  period,  the  limitation  is 
void.  The  object  of  the  tule  is  to  prevent  any  limitation  which  may 
restrain  the  alienation  of  property  beyond  the  precise  period  within 
which  it  must  by  law  take  eft'ect.  If  the  event  upon  which  the  limi- 
tation over  is  to  take  effect  may,  by  possibility,  not  occur  within  the 
allowed  period,  the  executory  devise  is  too  remote,  and  can  not  take 
effect.  Nightingale  v.  Burrell,  15  Pick.  Ill;  4  Kent.  Com.  283;  6 
Cruise,  Dig.  tit.  38,  c.  17,  §  23.  These  rules  are  stated  with  great  pre- 
cision in  2  Atkinson  on  Conveyancing  (2d  Ed.)  264. 

The  devise  over  to  the  heirs  of  John  Hancock  is  therefore  void,  as 
being  too  remote.  The  event  upon  which  the  prior  estate  was  to  de- 
termine, and  the  gift  over  take  effect,  might  or  might  not  occur  within 
a  life  or  lives  in  being  at  the  death  of  the  testatrix,  and  twenty  one 
years  thereafter.  The  minister  of  the  church  in  Brattle  Square,  it  is 
true,  might  have  ceased  constantly  to  reside  and  dwell  in  the  house, 
and  it  might  have  been  improved  for  other  purposes,  within  a  year 
after  the  decease  of  the  testatrix;   but  it  is  also  true  that  it  may  be 


220  CONDITIONAL    OR    QUALIFIED    ESTATES 

occupied  as  a  parsonage,  in  the  manner  prescribed  in  the  will,  as  it  has 
hitherto  been  during  the  past  seventy-five  years  for  five  hundred  or 
a  thousand  years  to  come.  The  limitation  over  is  not  made  to  take 
efifect  on  an. event  which  necessarily  must  happen  at  any  fixed  period 
of  time,  or  even  at  all.  It  is  not  dependent  on  any  act  or  omission  of 
the  devisees,  over  which  they  might  exercise  a  control.  It  is  strictly 
a  collateral  limitation,  to  arise  at  a  near  or  remote  period,  uncertain 
and  indeterminate,  and  contingent  upon  the  will  of  a  person  who  may 
at  any  time  happen  to  be  clothed  with  the  office  of  eldest  minister  of 
the  church  in  Brattle  Square.  It  is  difficult  to  imagine  an  event  more 
indefinite  as  to  the  time  at  which  it  may  happen,  or  more  uncertain 
as  to  the  cause  to  which  it  is  to  owe  its  birth. 

The  more  common  cases  of  limitations  by  executory  devise,  which 
are  held  void,  as  contravening  the  rule  against  perpetuities,  are  when 
property  is  given  over  upon  an  indefinite  failure  of  issue,  or  to  a 
class  of  persons  answering  a  particular  description  or  specifically 
named ;  as  to  the  children  of  A  who  shall  attain  the  age  of  twenty-five, 
or  to  a  person  possessing  a  certain  qualification,  with  which  he  will  not 
be  necessarily  clothed  within  the  prescribed  period.  So  gifts  to  take 
effect  upon  the  extinction  of  a  dignity,  by  failure  of  the  lives  of  per- 
sons to  whom  it  is  descendable  (Bacon  v.  Proctor,  Turn.  &  Russ.  31 ; 
Mackworth  v.  Hinxman,  2  Keen,  658),  or  depending  on  the  contin- 
gency of  no  heir  male  or  other  heir  of  a  particular  person  attaining 
twenty  one,  no  person  being  named  as  answering  that  description  (Ker 
V.  Lord  Dungannon,  1  Dru.  &  War.  509),  are  held  invalid,  as  being 
too  remote.  So,  too,  in  a  case  more  analogous  to  the  present,  where 
the  testator  devised  lands  to  trustees,  and  directed  the  yearly  rents, 
to  a  certain  amount  then  fixed  and  named  in  the  will,  to  be  appropriated 
for  certain  charitable  purposes;  and  provided  that,  in  the  event  of 
there  being  a  new  letting,  by  which  an  increase  of  rents  was  obtained, 
the  surplus  arising  from  such  increase  should  go  to  the  use  and  behoof 
of  the  person  or  persons  belonging  to  certain  families,  who,  for  the 
time  being,  should  be  lord  or  lords,  lady  or  ladies,  of  the  manor  of 
Downpatrick;  and  in  case  the  said  families  did  not  protect  the  chari- 
ties established  by  the  will,  or  if  the  said  families  should  become  ex- 
tinct, then  the  said  surplus  rents  were  to  be  appropriated  to  said  char- 
ities, in  addition  to  the  former  provisions  for  the  charity ;  it  was  held 
that  the  gift  over  of  the  surplus  rents  to  the  trustees  for  the  charity 
was  too  remote,  as  the  contingency  upon  which  it  was  to  take  effect 
was  not  restricted  to  the  proper  limits.  Commissioners  of  Charitable 
Donations  v.  Baroness  De  Clifford,  1  Dru.  &  War.  245,  253. 

In  this  case  Lord  Chancellor  Sugden  says :  "This  is  a  clear  equita- 
ble devise  of  a  fee  qualified  or  limited ;  a  fee  in  the  surplus  rents  for 
this  family,  so  long  as  they  shall  be  lords  and  ladies  of  the  manor 
of  Downpatrick,  'in  case,'  (and  I  must  here  read  the  words  'in  case' 
as  if  they  were  'whilst,'  or  'so  long  as,')  certain  persons  protect  the 


ESTATES    UPON   CONDITIONAL   LIMITATION  221 

almshouse,  etc. ;  and  thus  the  limitation  would  assume  the  same  char- 
acter as  that  which  is"  so  familiar  to  us  all,  viz.,  while  such  a  tree  shall 
stand,  or  the  happening  of  any  other  indifferent  event.  Such  being 
my  opinion  with  respect  to  the  estate  devised  to  these  families,  I  must 
hold  the  gift  over  void.  The  law  admits  of  no  gift  over,  dependent 
on  such  an  estate;  a  limitation  after  it  is  void,  and  cannot  be  sup- 
ported; otherwise,  it  would  take  effect  after  the  time  allowed  by  law." 

It  is  difficult  to  distinguish  that  case  from  the  one  at  bar.  The  con- 
tingency of  the  families  neglecting  to  protect  the  charities  established 
by  the  will,  in  that  case,  was  no  more  remote  than  that  of  the  failure 
or  omission  of  the  minister  of  the  church  for  the  time  being  to  reside 
and  dwell  in  the  house,  as  is  prescribed  by  the  will  in  the  present 
case.  Either  event  might  take  place  within  the  prescribed  period,  but 
it  might  not  until  a  long  time  afterwards.  It  can  make  no  difference 
in  the  application  of  the  case  cited,  that  it  was  the  gift  of  an  equitable 
fee  simple,  because  the  limits  prescribed  to  the  creation  of  future  es- 
tates and  interests  are  the  same  at  law  and  in  equity.  Lewis  on  Perp. 
"169;  4  Cruise,  Dig.  tit.  32,  c.  24,  §  1 ;  Duke  of  NorfoU<  v.  Howard, 
1  Vern.  164. 

But  it  is  quite  unnecessary  to  seek  out  analogies  to  sustain  this 
point,  as  we  have  a  direct  and  decisive  authority  i^i  the  case  of  Welsh 
V.  Foster,  12  Mass.  97.  It  was  there  held,  that  a  limitation,  in  sub- 
stance the  same  as  that  annexed  to  the  devise  in  the  present  case,  being 
made  to  take  effect  when  the  estate  should  cease  to  be  used  for  a 
particular  purpose,  was  void,  for  the  reason  that  it  contravened  the 
rule  against  perpetuities.  That  was  the  case  of  a  grant  by  deed,  with 
a  proviso  that  the  estate  was  not  to  vest  "until  the  millpond  [on  the 
premises]  should  cease  to  be  employed  for  the  purpose  of  carrying 
any  two  mill-wheels ;"  and  it  was  adjudged  that  the  rule  was  the  same 
as  to  springing  and  shifting  uses  created  by  deed,  as  that  uniformly 
applied  to  executory  devises  in  order  to  prevent  the  creation  of  inalien- 
able estates.  The  limitation  was  therefore  held  invalid,  as  depending 
on  a  contingency  too  remote. 

The  true  test,  by  which  to  ascertain  whether  a  limitation  over  is 
void  for  remoteness,  is  very  simple.  It  does  not  depend  on  the  char- 
acter or  nature  of  the  contingency  or  event  upon  which  it  is  to  take 
effect.  These  may  be  varied  to  any  extent.  But  it  turns  on  the  single 
question  whether  the  prescribed  contingency  or  event  may  not  arise 
until  after  the  time  allowed  by  law,  within  which  the  gift  over  must 
take  effect.  Applying  this  test  to  the  present  case,  it  needs  no  argu- 
ment or  illustration  to  show  that  the  devise  over  to  John  Hancock  and 
his  heirs  is  upon  a  contingency  which  might  not  occur  within  any  pre- 
scribed period,  and  is  therefore  void,  as  being  too  remote. 

The  remaining  inquiry  is  as  to  the  effect  of  the  invalidity  of  the 
devise  over,  on  account  of  its  remoteness,  upon  the  preceding  gift  in 
fee  to  the   deacons  and  their  successors  forever.     Upon  this  point 


222  CONDITIONAL    OU    QUALIFIED    ESTATES 

we  understand  the  rule  to  be,  that  if  a  Hmitation  over  is  void  by  reason 
of  its  remoteness,  it  places  all  prior  gifts  in  the  same  situation  as  if 
the  devise  over  had  been  wholly  omitted.  Therefore  a  gift  of  the  fee 
or  the  entire  interest,  subject  to  an  executory  limitation  which  is  too 
remote,  takes  effect  as  if  it  had  been  originally  limited  free  from  any 
devesting  gift.  The  general  principle  applicable  to  such  cases  is,  that 
when  a  subsequent  condition  or  limitation  is  void  by  reason  of  its 
being  impossible,  repugnant  or  contrary  to  law,  the  estate  becomes 
vested  in  the  first  taker,  discharged  of  the  condition  or  limitation 
over,  according  to  the  terms  in  which  it  was  granted  or  devised ;  if 
for  life,  then  it  takes  effect  as  a  life  estate ;  if  in  fee,  then  as  a  fee 
simple  absolute.  1  Jarman  on  Wills,  200,  783 ;  Lewis  on  Perp.  657 ; 
2  Bl.  Com.  156;    4  Kent,  Com.  130;    Co.  Lit.  206  a,  206  b,  223  a. 

The  reason  on  which  this  rule  is  said  to  rest  is,  that  when  a  party 
has  granted  or  devised  an  estate,  he  shall  not  be  allowed  to  fetter  or 
defeat  it,  by  annexing  thereto  impossible,  illegal  or  repugnant  condi- 
tions or  limitations.  Thus  it  has  been  often  held,  that  when  land  is 
devised  to  A.  in  fee,  and  upon  the  failure  of  issue  of  A.,  then  to  B. 
in  fee,  and  the  first  estate  is  so  limited,  that  it  cannot  take  effect  as 
an  estate  tail  in  A.,  the  limitation  over  to  B.  is  void,  as  being  too  remote, 
because  given  upon  an  indefinite  failure  of  issue,  and  the  estate  vests 
absolutely  in  fee  in  A.,  discharged  of  the  limitation  over.  So  it  was 
early  held,  that  where  a  testator  devised  all  his  real  and  personal 
estate  to  his  wife  for  life,  and  after  her  death  to  his  son  and  his  heirs 
forever,  and  in  case  of  the  death  of  the  son  without  any  heir,  then 
over  to  the  plaintiff  in  fee,  the  devise  over  to  the  plaintiff  was  void, 
and  the  son  took  an  absolute  estate  in  fee.  Tilbury  v.  Barbut,  3  Atk. 
617;  Tyte  v.  Willis,  cas.  temp.  Talb.  1;  1  Fearne,  Cont.  Rem.  445. 
So,  too,  if  a  devise  be  made  to  A.  and  his  heirs  forever,  and  for  want 
of  such  heirs  then  to  a  stranger  in  fee;'  the  devise  over  to  the  stranger 
would  be  void  for  remoteness,  and  A.  would  take  a  fee  simple  absolute. 
Nottingham  v.  Jennings,  1  P.  W.  25 ;  1  Pow.  Dev.  178,  179;  2  Saund. 
388  a,  b;  1  Fearne,  Cont.  Rem.  467;  Attorney  General  v.  Gill,  2 
P.  W.  369;  Busby  v.  Salter,  2  Preston's  Abstracts,  164;  Kampf  v. 
Jones,  2  Jeen,  756;  Ring  v.  Hardwick,  2  Beav.  352;  Miller  v.  Ma- 
comb, 26  Wend.  (N.  Y.)  229;  Ferris  v.  Gibson,  4  Edw.  Ch.  (N.  Y.) 
707;  Tator  v.  Tator,  4  Barb.  (N.  Y.)  431;  Conklin  v.  Conklin,  3 
Sandf.  Ch.  (N.  Y.)  64. 

Such  indeed  is  the  necessary  result  which  follows  from  the  man- 
ner in  which  executory  devises  came  into  being  and  were  engrafted 
on  the  stock  of  the  common  law.  Originally,  as  has  been  already 
stated,  no  estate  could  be  limited  over  after  a  limitation  in  fee  simple, 
and  in  such  case  the  estate  became  absolute  in  the  first  taker.  This 
rule  was  afterwards  relaxed  in  cases  of  devises,  for  the  purpose  of 
effectuating  the  intent  of  testators,  so  far  as  to  render  such  gifts  valid 
by  way  of  executory  devise,  when  confined  within  the  limits  prescribed 


ESTATES    UPON   CONDITIONAL   LIMITATION  223 

to  guard  against  perpetuities.  If  a  testator  violated  the  rule  by  a 
limitation  over  which  was  too  remote,  the  result  was  the  same  as  if  at 
common  law  he  had  attempted  to  create  a  remainder  after  an  estate 
in  fee.  The  remainder  would  have  been  void,  and  the  fee  simple  ab- 
solute would  have  vested  in  the  first  taker.  6  Cruise  Dig.  tit.  38,  c.  12^ 
§  20;   Co.  Lit.  18  a,  271  b. 

The  rule  is,  therefore,  that  no  estate  can  be  devised  to  take  effect 
in  remainder  after  an  estate  in  fee  simple;  but  a  devise,  to  vest  in 
derogation  of  an  estate  in  fee  previously  devised,  may  under  proper 
limits  be  good  by  way  of  executory  devise.  If^  after  a  limitation  in 
fee  by  will,  a  disposition  is  made  of  an  estate  to  commence  on  the 
determination  of  the  estate  in  fee,  the  law,  except  in  the  case  of  a 
devise  over  to  take  effect  within  the  prescribed  period,  presumes  the 
estate  first  granted  will  never  end,  and  therefore  regards  the  subse- 
quent disposition  as  vain  and  useless.  Shep.  Tolfch.  (Preston's  Ed.) 
417.  It  makes  no  difference  in  the  application  of  this  rule,  that  the 
condition  on  which  the  limitation  over  is  made  to  depend  is  not  mala 
in  se.  It  is  sufficient  that  it  is  against  public  policy.  Thus  in  a  re- 
cent case  where  estates  were  limited  to  A.  for  ninety-nine  years,  if 
he  should  so  long  live,  remainder  to  the  heirs  male  of  his  body,  with 
a  proviso  that  if  A.  did  not  during  his  lifetime  acquire  a  certain  dig- 
nity in  the  peerage,  the  gift  to  his  heirs  male  should  be  void,  and 
the  estate  should  go  over  to  certain  other  persons,  it  was  held  that 
this  conditional  limitation  was  made  to  depend  upon  a  condition  which 
was  against  public  policy  and  therefore  void,  and  that  the  estate 
vested  in  the  eldest  son  of  A.  as  heir  male,  discharged  of  the  gift  over. 
Egerton  v.  Earl  Brownlow,  4  H.  L.  Cas.  1. 

So  in  the  case  at  bar,  the  limitation  over  being  upon  an  event  which 
is  too  remote,  and  for  that  reason  contrary  to  the  policy  of  the  law, 
cannot  take  effect.  The  estate  therefore  in  the  deacons  and  their  suc- 
cessors remains  unaffected  by  the  gift  over  the  John  Hancock  and  his 
heirs.  The  doctrine  on  this  point  is  briefly  and  clearly  stated  in  the 
Touchstone :  "No  condition  or  limitation,  be  it  by  act  executed,  lim- 
itation of  a  use,  or  by  devise  or  last  will,  that  doth  contain  in  it  mat- 
ter repugnant,  or  matter  that  is  against  law,  is  good.  And  there- 
fore, in  all  such  cases,  if  the  condition  be  subsequent,  the  estate  is 
absolute  and  the  condition  void ;  "and  the  same  law  is  for  the  most 
part  of  limitations,  if  they  be  repugnant,  or  against  law,  as  is  of  condi- 
tions" in  like  cases.    Shep.  Touch.  129,  133.    See  also  4  H.  L.  Cas.  160. 

It  is  undoubtedly  true  that  this  construction  of  the  devise  defeats 
the  manifest  purpose  of  the  testatrix,  which  was,  on  a  failure  to  use 
and  occupy  the  premises  as  a  parsonage  in  the  manner  described  in 
the  will,  to  give  the  estate  to  John  Hancock  and  his  heirs.  But  no 
principle  is  better  settled  than  that  the  intent  of  a  testator,  however 
clear,  must  fail  of  effect,  if  it  cannot  be  carried  into  effect  without 
a  violation  of  the  rules  of  law.     1  Pow.  Dev.  388,  389. 


224  CONDITIONAL    OR    QUALIFIED    ESTATES 

It  is  to  be  borne  in  mind,  however,  in  this  connection,  that  the  claim 
set  up  by  the  heirs  at  law  of  the  testatrix  to  the  premises  in  controver- 
sy is  in  direct  contravention  of  the  clear  intent  of  the  will,  by  which 
they  are  studiously  excluded  from  any  share  or  interest  whatever  in 
this  estate.  All  that  she  did  not  specifically  devise  is  given  by  residu- 
ary clause  to  John  Hancock.  Her  heirs  therefore  can  claim  only  by  vir- 
tue of  an  arbitrary  rule  of  law;  and  it  certainly  more  accords  with 
the  general  intent  of  the  testatrix,  that  the  absolute  title  in  this  es- 
tate should,  by  reason  of  the  invalidity  of  the  gift  over,  be  vested  in 
the  deacons  and  their  successors,  who  were  manifestly  the  chief  ob- 
jects of  her  bounty  in  this  devise,  than  in  her  heirs  at  law,  whom  she 
so  carefully  disinherited.  The  court  will  not  construe  a  conditional 
limitation  as  a  mere  condition,  and  thus  defeat  the  estate  first  limited, 
in  a  mode  not  contemplated  by  the  testatrix. 

Nor  can  the  estate  in  question  pass  by  the  residuary  clause.  The 
testatrix  having  specifically  devised  the  entire  estate  to  the  first  taker, 
and  upon  the  happening  of  the  contingency  over,  to  another  person, 
could  not  have  intended  to  include  it  in  the  gift  of  the  residue.  She 
had  given  away  all  her  estate  and  interest  in  the  property,  and  noth- 
ing remained  to  pass  by  the  residuary  clause.  2  Pow.  Dev.  102-104; 
Hayden  v.  Stoughton,  5  Pick.  538.  It  is  not  like  a  case  of  a  gift  on 
a  valid  condition,  where  the  right  or  possibility  of  reverter  remains  in 
the  donor  or  devisor,  which  would  pass  under  a  residuary  clause,  or 
in  case  of  intestacy,  to  the  heirs  of  the  donor;  but  it  is  the  case  of 
a  devise  in  fee  on  a  conditional  limitation  over,  which  is  void  in  law. 
There  is  therefore  no  possibility  or  right  of  reverter  left  in  the  de- 
visor, which  can  pass  to  heirs  or  residuary  devisees,  and  the  limita- 
tion over  being  illegal  and  void,  the  estate  remains  in  the  first  takers, 
discharged  of  the  devesting  gift. 

Nor  does  it  make  any  difference  in  the  application  of  this  well  set- 
tled rule  of  law  to  the  present  case,  that  the  testatrix  in  terms  de- 
clares that  the  gift  to  the  deacons  and  their  successors  shall  be  void, 
if  the  prescribed  condition  be  not  fulfilled.  The  legal  effect  of  all 
conditonal  limitations  is  to  make  void  and  terminate  the  previous  es- 
tate upon  the  happening  of  the  designated  contingency,  and  to  vest 
the  title  in  those  to  whom  the  estate  is  limited  over  by  the  terms  of 
the  gift  or  grant.  The  clause  in  the  will,  therefore,  which  declares  the 
gift  void  in  the  event  of  a  breach  of  the  condition,  and  directs  that  the 
premises  shall  revert  to  her  estate,  does  not  change  the  nature  of 
the  estate,  nor  add  any  force  or  effect  to  the  condition  which  it  would 
not  have  had  at  law,  if  no  such  clause  had  been  inserted  in  the  will. 
It  is  simply  a  conditional  limitation.  The  condition,  being  accom- 
panied by  a  limitation  over  which  is  void  in  law,  fails  of  effect,  and 
the  estate  becomes  absolute  in  the  first  takers.  It  could  not  revert  to 
her  estate,  because  there  was  no  reversion  left,  the  whole  estate  being 
limited  over  by  the  same  devise.     Such  reversion  could  only  exist  in 


ESTATES    UPON    CONDITIONAL   LIMITATION  225 

case  of  a  simple  condition,  as  we  have  already  seen ;  and  no  such 
reverter  can  take  place  where  the  condition  is  accompanied  by  a  limi- 
tation over. 

Besides,  and  this  perhaps  is  the  more  satisfactory  view  of  a  devise 
of  this  nature,  the  condition  operates  only  as  a  limitation,  the  rule  be- 
ing that  when  an  estate  is  given  over  upon  breach  of  a  condition,  and 
the  same  is  devised  by  express  words  of  condition,  yet  it  will  be  intended 
as  a  limitation  only.  In  all  cases  where  a  clause  in  a  will  operates  as 
a  condition  to  a  prior  estate,  and  a  limitation  over  of  a  new  estate, 
the  condition  takes  effect  only  as  a  collateral  determination  of  the 
prior  estate,  and  not  strictly  as  a  condition.  Therefore  a  limitation 
on  a  condition  or  contingency  is  not  a  condition ;  a  clause  creating  con- 
tingent remainders  or  executory  gifts  by  devise  is  properly  a  limi- 
tation, and  though  it  be  in  such  terms  as  to  defeat  another  estate  by 
way  of  shifting  use  or  executory  devise,  still  it  is  strictly  speaking  a 
limitation.  2  Cruise  Dig.  tit.  16,  c.  2,  §  30;  Shep.  Touch.  11'7,  126; 
1  Vent.  202;  Carter,  171. 

The  case  of  Austin  v.  Cambridgeport  Parish,  21  Pick.  215,  cited 
and  relied  upon  by  the  defendant  Hancock,  is  widely  dift'erent  from 
the  case  at  bar.  That  was  a  grant  by  deed  of  an  estate,  defeasible  on 
a  condition  subsequent  which  was  legal  and  valid.  The  possibility  of 
reverter  was  in  the  grantor  and  his  heirs  or  devisees;  the  residue  of 
the  estate  was  vested  in  his  grantee,  the  parish.  The  two  interests 
united  made  up  the  entire  fee  simple  estate,  and  were  vested  in  per- 
sons ascertainable  and  capable  of  conveying  the  entire  estate.  There 
was  nothing,  therefore,  in  that  case  which  resembled  a  perpetuity,  or 
restrained  the  alienation  of  real  property.  The  conditional  estate  in 
the  parish,  and  the  possibility  of  reverter  in  the  devisees  of  the  gran- 
tor, were  vested  estates,  and  interests  capable  of  conveyance,  and  con- 
stituting together  an  entire  title  or  estate  in  fee  simple.  This  is  very 
different  from  an  executory  devise,  where  only  the  conditional  estate 
is  vested,  and  the  persons  to  whom  the  limitation  over  is  made  are  un- 
certain and  incapable  of  being  ascertained  until  the  prescribed  con- 
tingency happens,  however,  remote  that  event  may  be.  No  convey- 
ance of  such  an  estate,  by  whomsoever  made,  could  vest  a  good  title, 
because  it  can  never  be  made  certain,  until  after  a  breach  of  the  con- 
dition, in  whom  the  estate  is  to  vest.  Besides,  in  that  case  there  was 
nothing  illegal  or  contrary  to  the  policy  of  the  law,  in  the  creation  of 
the  estate  by  the  original  grantor. 

The  case  of  Hayden  v.  Stoughton,  5  Pick.  528,  to  which  reference 
has  also  been  made,  did  not  raise  any  question  as  to  the  remoteness 
of  the  gift  over,  because  it  there  vested,  according  to  the  construction 
given  to  the  will,  within  twenty  years  from  the  death  of  the  testator, 
and,  therefore,  within  the  prescribed  period.  In  the  case  of  Brigham 
V.  Shattuck,  10  Pick.  306,  the  court  expressly  avoid  any  decision  on 

Burd.Cas.Real  Prop. — 15 


226  CONDITIONAL    OR    QUALIFIED    ESTATES 

the  validity  of  the  devise  over,  and  decide  the  case  upon  the  ground 
that  the  demandant  had  no  title  to  the  premises  in  controversy. 

The  result,  therefore,  to  which  we  have  arrived  on  the  whole  case 
is,  that  the  gift  over  to  John  Hancock  is  an  executory  devise,  void 
for  remoteness ;  and  that  the  estate,  upon  breach  of  the  prescribed 
condition,  would  not  pass  to  John  Hancock  and  his  heirs,  by  virtue  of 
the  residuary  clause,  nor  w^ould  it  vest  in  the  heirs  at  law  of  the  tes- 
tatrix. But  being  an  estate  in  fee  in  the  deacons  and  their  successors, 
and  the  gift  over  being  void,  as  contrary  to  the  policy  of  the  law,  by 
reason  of  violating  the  rule  against  perpetuities,  the  title  became  abso- 
lute, as  a  vested  remainder  in  fee,  after  the  decease  of  the  mother  of 
the  testatrix,  in  the  deacons  and  their  successors,  and  they  hold  it  in 
fee  simple,  free  from  the  devesting  limitation. 

A  decree  may  therefore  be  entered  for  the  sale  of  the  estate,  as 
prayed  for  in  the  bill,  and  for  a  reinvestment  of  the  proceeds  for  the 
objects  and  purposes  intended  to  be  effected  by  the  trusts  declared  in 
the  will  respecting  the  property  in  question. 


VII.  Modified  Fees  » 
1.  Base  or  Determinable  Fees 


LYFORD  V.  CITY  OF  LACONIA. 

(Supreme  Court  of  New  Hampsliiie,  1909.     75  N.  H.  220,  72  Atl.  10S5,  22  L. 
R.  A.   [N.   S.]  1062,  139  Am.  St.  Rep.  GSO.) 

Exceptions  from  Superior  Court,  Belknap  County. 

JProceedings  by  the  City  of  Laconia  to  condemn  land  for  the  en- 
largement of  the  public  library  park  and  lot.  There  was  a  judgment 
awarding  compensation,  and  Stephen  K.  Lyford  brings  exceptions. 
Overruled. 

Appeal,  from  the  assessment  of  damages  by  the  city  council  of 
Laconia  for  land  taken  under  the  power  of  eminent  domain  for  the 
enlargement  of  the  public  library,  park,  and  lot.  The  land  in  question 
is  located  at  the  corner  of  Main  and  Church  streets,  and  at  the  time 
of  the  taking  was  occupied  by  the  Congregational  Church  Society  with 
a  house  of  public  worship.  The  appellant  was  awarded  $1  damages. 
His  appeal  was  heard  by  the  county  commissioners,  who  awarded  him 
the  same  sum.  He  thereupon  claimed  a  trial  by  jury.  At  the  close 
of  his  evidence,  the  court  (Wallace,  C.  J.)  ruled,  subject  to  exception, 
that  he  could  recover  no  more  than  nominal  damages  and  ordered 
judgment  for  him  for  $1. 

»  For  discu.ssion  of  principles,  see  Burdick,  Real  Prop.  §  117. 


MODIFIED   FEES  227 

The  appellant  claimed  title  to  the  premises  as  the  grandson  and 
only  heir  of  Stephen  C.  Lyford,  who  in  1837  gave  the  Congregational 
Society  a  deed  of  the  land  in  question.  In  consideration  of  $100,  the 
deed  purports  to  convey  to  the  Society,  their  successors  and  assigns 
forever,  a  certain  parcel  of  land,  giving  the  boundaries.  Immedi- 
ately after  the  description  of  the  land  are  the  following  clauses :  "Said 
Society  to  hold  said  premises  as  long  as  they  occupy  the  same  with  a 
house  of  public  worship  and  no  longer,  and  when  they  cease  to  so  oc- 
cupy said  premises,  then  the  same  shall  revert  to  me  and  my  heirs. 
To  have  and  to  hold  the  said  granted  premises,  with  all  the  privileges 
and  appurtenances  to  the  same  belonging,  to  said  society  and  their 
assigns,  to  them  and  their  only  proper  use  and  benefit  forever."  The 
deed  concludes  with  the  ordinary  covenants  of  the  warranty  form.  The 
Society  at  once  took  possession  under  their  deed  and  occupied  with  a 
house  of  public  worship  until  after  the  land  was  taken  by  the  city. 
Damages  were  awarded  by  the  city  council  to  the  society,  and  no  ap- 
peal was  taken,     *     *     *  ^^ 

Parsons,  C.  J.  *  *  *  ^^  It  is  not  necessary  to  decisively  deter- 
mine the  effect  of  Stephen's  deed.  On  either  view  taken  by  counsel, 
the  result  is  the  same.  The  defendants  interpret  the  deed  as  giving  to 
the  society  an  estate  upon  condition  subsequent  that  they  should  oc- 
cupy the  land  with  their  house  of  public  worship ;  their  title  being  lia- 
ble to  be  defeated  by  breach  of  the  condition  and  entry  by  the  grantor 
or  his  heir.  The  plaintiff'  contends  that  the  deed  created  in  the  society 
"what  is  technically  known  as  a  base,  qualified,  or  determinable  fee," 
which  determined  when  the  society  ceased  to  occupy  the  land  with  a 
house  of  public  worship.  He  concedes  that  if  the  society  held  the  land 
upon  condition  subsequent,  the  further  compliance  with  the  condition 
being  prevented  by  act  of  the  law,  the  society  would  hold  the  land 
discharged  of  the  condition,  and  that  he  has  no  interest  for  which  dam- 
ages could  be  awarded.  Scovill  v.  McMahon,  62  Conn.  378,  26  Atl. 
479,  21  L.  R.  A.  58,  36  Am.  St.  Rep.  350.  This  case  upon  which  the 
concession  is  based  does  not,  however,  require  it.  In  that  case  there 
was  a  conveyance  of  land  upon  the  express  condition  that  it  should 
be  used  for  a  burial  ground  and  for  no  other  purpose.  Subsequently 
the  Legislature  forbade  its  further  use  for  such  purpose,  and  further 
provided  that  upon  petition  of  the  city  the  court  might  order  the  re- 
moval of  the  bodies  and  monuments  from  the  cemetery,  and  that  upon 
payment  to  the  owners  of  the  sums  decreed  as  the  value  of  their  in- 
terests the  same  should  become  a  public  park.  In  answer  to  the  claim 
of  the  grantor's  heirs,  it  was  held:  That  if  the  plaintiffs'  property  had 
been  taken  by  the  state,  it  was  taken  by  the  act  forbidding  the  use 
of  the  ground  as  a  burial  place,  which  destroyed  the  condition  of 
the  deed  and  rendered  the  grantees'  title  absolute;  that  the  destruction 

10  Part  of  the  statement  of  facts  is  omitted. 
'■I  Part  of  the  opinion  is  omitted. 


228  CONDITIONAL    OR    QL'ALIFIED    ESTATES 

of  the  plaintiffs'  possibility  of  reverter  in  the  exercise  of  the  police 
power  was  not  a  taking  for  public  use;  and  that  they  were  not  en- 
titled to  share  in  the  damages  for  the  subsequent  taking  of  the  land 
for  public  use  because  tlieir  right  had  already  been  extinguished.  The 
case  is  not  in  point. 

The  terms,  "qualified,"  "base,"  and  "determinable"  have  been  used 
"promiscuously"  as  descriptive  of  the  estate  claimed  to  have  been  cre- 
ated by  this  deed,  though  "determinable"  is  perhaps  most  accurate. 
Such  a  fee  is  an  estate  limited  to  a  person  and  his  heirs,  with  a  qual- 
ification annexed  to  it  by  which  it  is  provided  that  it  must  determine 
whenever  that  qualification  is  at  an  end.  Weed  v.  Woods,  71  N.  H. 
581,  584,  585,  53  Atl.  1024;  2  Bl.  Com.  *109;  4  Kent,  *9;  1  Cru. 
Dig.  *73;  Gray,  Perp.  §  32.  A  text-writer  of  authority  takes  the 
position  that  since  the  statute  quia  emptores  there  can  be  no  possibility 
of  reverter  remaining  in  a  grantor  other  than  the  sovereign  upon  a 
grant  of  a  fee,  and  hence  an  attempt  to  create  a  determinable  fee  by 
private  grant  results  in  a  fee  simple  absolute,  unless  the  grant  can  be 
sustained  as  a  gift  or  conveyance  for  charitable  purposes  with  a  pos- 
sible resulting  trust  to  the  grantor  and  his  heirs  upon  the  accomplish - 
inent  of  the  purpose,  as  has  been  suggested  might  be  the  proper  con- 
struction of  the  deed  in  this  case.    Gray,  Perp.  §§31  (3),  41a. 

The  logic  of  the  argument  may  be  unanswerable  (17  Harv.  Law  Rep. 
297,  299),  and  it  may  be  demonstrated  that  in  England,  at  least,  the 
possibility  of  such  limited  fee  so  created  is  a  matter  resting  upon  the 
authority  of  text-writers,  instead  of  upon  decisions  of  the  courts. 
Collier  v.  Walters,  L.  R.  17  Eq.  252;  Collier  v.  McBean,  34  Beav. 
426;  Poole  v.  Needham,  Yelv.  149;  and  cases  cited  in  Gray,  Perp. 
§  33.  But  it  is  clear,  and  in  fact  is  conceded,  that  the  courts  of  this 
country  have  at  least  understood  determinable  fees  to  be  possible 
estates,  and  the  possibility  of  reverter  dependent  thereon  a  valid  in- 
terest. First  Univ.  Society  v.  Boland,  155  Mass.  1'71,  174,  175,  29  N. 
E.  524,  15  L.  R.  A.  231 ;  Gray,  Perp.  §  40  (2a).  In  this  state,  in  addi- 
tion to  Weed  v.  Woods,  supra,  the  existence  of  such  interests  are  re- 
ferred to  by  Judge  Ladd  in  Reed  v.  Hatch,  55  N.  H.  327,  338,  and  by 
Bell,  C.  J.,  in  Worster  v.  Company,  41  N.  H.  16,  22.  In  Wood  v. 
County,  32  N.  H.  421,  it  would  appear  from  the  statement  of  facts 
that  a  possibility  of  reverter  upon  a  determinable  fee  had  been  upheld 
in  an  earlier  decision  in  the  case  which  was  never  reported.  From 
memoranda  in  18  Notes  Supreme  Court,  407,  456,  it  is  clear  there  was 
no  consideration  of  the  question  raised  by  Gray. 

Since,  if  the  contention  of  Prof.  Gray  is  sound,  it  would  dispose  of 
the  position  upon  which  the  plaintiff  has  rested  his  case  the  question 
is  presented,  and,  in  the  absence  of  any  discussion  in  the  reports, 
might  properly  be  now  examined ;  but  it  has  not  been  thought  neces- 
sary to  undertake  the  discussion,  for,  conceding  the  validity  of  the 
interest  claimed  for  the  plaintiff,  such  interest  is  not  of  a  character  to 


MODIFIED   FEES  229 

entitle  him  to  damages.  The  proprietor  of  a  determinable  fee,  so 
long  as  the  estate  in  fee  remains,  till  the  contingency  upon  which  the 
estate  is  limited  occurs,  has  all  the  rights  and  privileges  over  it  that  he 
would  have  if  tenant  in  fee  simple.  After  such  a  grant  no  right  of 
seisin  or  possession  remains  in  the  grantor.  All  the  estate  is  in  the 
grantee  notwithstanding  the  qualification.  The  only  practical  distinc- 
tion between  a  right  of  entry  for  breach  of  a  condition  subsequent 
and  a  possibility  of  reverter  upon  a  determinable  fee  is  that  in  the 
former  the  estate  in  fee  does  not  terminate  until  entry  by  the  per- 
son having  the  right,  while  in  the  latter  the  estate  reverts  at  once 
upon  the  occurrence  of  the  event  by  which  it  is  limited.  Walsing- 
ham's  Case,  Plow.  557;  Jamaica  Pond  Corp.  v.' Chandler,  9  Allen 
(Mass.)  159,  168,  169;  First  Univ.  Society  v.  Boland,  155  Mass.  171, 
174,  29  N.  E.  524,  15  L.  R.  A.  231 ;  State  v.  Brown,  27  N.  J.  Law, 
13;  2  Bl.  Com.  *109,  note;  Cru.  Dig.  tit.  1,  §  80;  4  Kent,  *10;  1 
Wash.  R.  P.  (6th  Ed.)  §§  164,  165;   Gray,  Perp.  §§  31  (3),  32. 

Whether  the  plaintiff's  right  is  a  possibility  of  reverter  upon  a  de- 
terminable fee,  or  a  right  of  entry  for  breach  of  a  condition  subse- 
quent, he  had  when  the  land  was  taken  no  right  to  the  land  and  no 
possession  of  it.  "Wherever  the  gift  is  of  a  fee,  there  cannot  be  a 
remainder,  although  the  fee  may  be  a  qualified  or  determinable  one. 
The  fee  is  the  whole  estate.  When  once  granted,  there  is  nothing 
left  in  the  donor  but  a  possibility  or  right  of  reverter,  which  does  not 
constitute  an  actual  estate.  *  *  *  All  the  estate  rests  in  the  first 
graritee^  notwithstanding  the  qualification  annexed  to  it."  Brattle 
SqT  Church  v.  Grant,  3  Gray  (Mass.)  142,  150,  63  Am.  Dec.  725. 
Whether  the  event  upon  which  the  plaintiff  might  come  into  ownership 
of  the  land  would  ever  happen  was  mere  speculation.  There  was  no 
method  by  which  the  value  of  the  interest  could  be  assessed  which 
would  rise  above  the  dignity  of  a  guess.  The  plaintiff  did  not  own  the 
land  taken.  He  was  not  an  owner  in  fee,  in  reversion,  or  in  remainder. 
He  had  no  subsisting  title  in  the  land,  but  only  a  possibility  that  it 
might  revert  to  him  by  the  happening  of  the  event  upon  which  the  es- 
tate of  the  society  was  determinable.  "He  is  not,  within  the  mean- 
ing of  the  act  under  which  these  proceedings  are  instituted,  a  person 
or  corporation  whose  land  is  taken  by  the  respondent.  His  possibility 
of  interest  is  too  remote  and  contingent  to  be  the  subject  of  an  esti- 
mate of  damages  by  a  jury."  Chandler  v.  Corporation,  125  Mass.  544, 
547. 

The  case  quoted  from  is  the  only  decision  found  apparently  exactly 
in  point.  Somewhat  analogous,  however,  are  the  decisions  in  this 
state  that  a  mortgagee  not  in  possession  is  not  entitled  to  notice  or  an 
assessment  of  damages  (Parish  v.  Gilmanton,  11  N.  H.  293;  Rigney 
V.  Lovejoy,  13  N.  H.  247,  251;  Gurnsey  v.  Edwards,  26  N.  H.  224, 
230;  Orr  v.  Hadley,  36  N.  H.  575,  579),  which  proceed  upon  the 
ground  that  until  the  mortgagee  has  entered  under  his  mortgage  the 


230  CONDITIONAL    OU    QUALIFIED    ESTATES 

,  mortgagor  is  the  owner  of  the  land.  It  is  also  held  that  damages  are 
not  assessable  for  an  inchoate  right  of  dower  when  land  is  taken  by 
eminent  domain,  because  such  inchoate  right  is  not  an  estate  in  the 
land.  Flynn  v.  Flynn,  171  Mass.  312,  50  N.  E.  650,  42  L.  R.  A.  98,  68 
Am.  St.  Rep.  427;  Venable  v.  Railway,  112  Mo.  103,  20  S.  W.  493, 
18  L.  R.  A.  68.  Another  reason  given  is  that  such  an  interest  is  too 
uncertain  to  admit  of  compensation.     Mills,  Em.  Dom.  (2d  Ed.)  §  71. 

Reliance  has  been  placed  upon  the  conclusions  of  the  referee  in  Re 
Brick  Presbyterian  Church,  4  Bradf .  Sur.  (N.  Y.)  503 ;  and  his  divi- 
sion of  the  damages  awarded  for  land  taken  for  a  street  between 
the  vault  owners  in  the  churchyard  and  the  church  has  been  suggested 
as  proper  to  be  followed  as  between  the  plaintiff  and  the  society.  But 
th.ere  is  no  similarity  in  law  or  fact  between  the  two  cases.  As  be- 
tween the  vault  owners  and  the  church,  each  owned  a  fee  simple. 
The  fee  was  determinable,  if  at  all,  only  as  between  the  church  and 
tiieir  grantor.  The  vault  owners  owned  a  perpetual  right,  as  against 
the  church,  below  the  surface  of  the  ground  where  the  burial  vaults 
were  situated.  The  church  owned  the  fee  above  the  surface  of  the 
ground.  Each  party  owned  a  portion  of  the  "aggregation  of  qualified 
privileges"  which  constitutes  property  in  land.  Thompson  v.  Com- 
pany, 54  N.  H.  545,  551.  Each  had  a  right  to  the  possession,  to  the 
extent  of  his  ownership.  If  the  title  of  the  vault  owners  was  a  base 
fee — a  proposition  at  least  open  to  doubt — so  was  that  of  the  church. 
In  re  Brick  Presbyterian  Church,  3  Edw.  Ch.  (N.  Y.)  155,  169.  The 
division  of  the  damages  between  the  two  owners  of  a  similar  fee  was 
merely  the  estimation  of  the  value  of  the  qualified  privileges  belonging 
to  each.  The  assessment  was  not  an  appraisal  of  the  value  of  a  de- 
terminable fee  and  a  possibility  of  reverter,  because  there  was  no 
such  division  of  interest  between  the  parties  interested.  The  case  is 
inapplicable. 

In  this  state,  upon  a  taking  for  public  use  under  the  statutes  upon 
which  this  proceeding  is  founded,  all  that  is  taken  is  the  right  to  use 
for  the  public  purpose.  The  owner  retains  the  right  to  use  the  prem- 
ises for  any  purpose  not  inconsistent  with  the  public  right.  Bigelow 
v.  Whitcomb,  72  N.  H.  473,  'ziJ  Atl.  680,  65  L.  R.  A.  676;  Bailey  v. 
Sweeney,  64  N.  H.  296,  9  Atl.  543 ;  Winchester  v.  Capron,  (yZ  N.  H. 
605,  4  Atl.  795,  56  Am.  Rep.  554;  Blake  v.  Rich,  34  N.  H.  282;  Baker 
v.  Shephard,  24  N.  H.  208,  218.  If  the  Legislature  has  power  to  au- 
thorize the  taking  of  the  fee,  as  has  been  held  elsewhere,  the  con- 
struction of  the  statute  as  to  highways  and  railroads  in  the  cases 
cited  is  conclusive  such  power  has  not  been  exercised.  The  damages 
are  assessed  upon  the  basis  of  a  perpetual  easement.  Peirce  v.  Som- 
ersworth,  10  N.  H.  369.  In  case  of  the  public  use  for  a  park  or  library 
lot,  the  practical  difference  while  the  use  lasts  between  taking  an  ease- 
ment and  a  fee  may  be  infinitesimal ;  but,  since  the  fee  is  not  taken,  a 
discontinuance  of  the  public  use  vests  the  whole  estate  in  the  original 


MODIFIED   FEES  231 

owner.  Cheshire  Turnpike  v.  Stevens,  10  N.  H.  133,  137;  Hampton 
V.  Coffin,  4  N.  H.  51'7,  518,  519.  That  it  was  understood  that  the  na- 
ture of  the  title  acquired  by  the  taking  of  land  for  a  park  was  the 
same  as  in  case  of  highways  is  shown  by  the  statutory  provisions  for 
the  discontinuance  of  a  pubhc  cemetery,  park,  or  common,  and  the 
assessment  of  damages  to  any  person  specially  injured  thereby  in  the 
same  manner  that  special  damages  are  assessed  in  case  of  the  dis- 
continuance of  a  highway.  Pub.  St.  1901,  c.  51,  §§  3,  7;  Page  v.  Sym- 
onds,  63  N.  H.  17,  21,  56  Am.  Rep.  481. 

The  state  has  taken  the  use  of  the  land.  As  the  society  owned  the 
use,  the  taking  must  have  been  from  the  society,  and  not  from  the 
plaintiff,  who  had  no  right  to  the  use.  Whether  the  plaintiff's  possi- 
bility of  reverter  dependent  upon  a  cessation  of  the  public  use,  should 
the  estate  then  come  to  him,  is  more  or  less  valuable  than  his  similar 
right  upon  the  cessation  of  the  religious  use  of  the  society,  is  plainly 
a  possibility  upon  a  possibility — a  matter  too  indefinite  and  vague 
for  pecuniary  estimation.  Whether  upon  a  cessation  of  the  public 
use  the  right  to  use  would  revert  to  the  society,  or  the  estate  (assuming 
the  validity  of  its  determinable  character)  would  at  once  vest  in  the 
plaintiff,  is  a  question  upon  which  discussion  would  be  useless.  If  the 
fee  of  the  society  has  not  been  taken,  the  title  must  revert  to  them, 
and  the  plaintiff's  interest,  whatever  it  is,  remains  absolutely  unim- 
paired. If  the  title  to  the  society  is  gone,  then  upon  expiration  of  the 
public  use  the  estate  would  at  once  revert  tO'  the  plaintiff,  and  it  is 
impossible  to  say  whether  he  has  been  damnified  or  benefited  by  the 
taking  from  the  society.  Whatever  interest  the  plaintiff  may  have, 
or  whatever  its  correct  technical  definition,  he  has  no  interest  which 
entitles  him  to  appeal,  and  he  cannot  complain  ot  the  judgment  allow- 
ing him  $1. 

Exceptions  overruled.    All  concur. 


HALL  V.  TURNER. 

(Supreme  Court  of  North  Carolina,  1892.    110  N.  C.  292,  14  S.  E.  791.) 

Appeal  from  superior  court.  Orange  county;  Robert  W.  Winston, 
Judge. 

Action  by  W.  L.  Hall,  as  administrator  of  Lambert  W.  Hall,  deceas- 
ed, and  others,  against  Emma  Turner,  as  administratrix  of  Evans 
Turner,  deceased,  and  others.  Judgment  for  defendants.  Plaintiffs 
appeal.    Reversed. 

The  other  facts  fully  appear  in  the  following  statement  by  Shep- 
herd, J. : 

The  plaintiffs,  the  administrator,  widow,  and  heirs  at  law  of  Lambert 
W.  Hall,  allege  that  the  said  Lambert  W.  Hall  and  Evans  Turner,  on 
the  13th  of  March,  1873,  entered  into  the  following  agreement,  to-wit : 


232  CONDITIONAL   OR    QUALIFIED    ESTATES 

"Articles  of  agreement  made  and  entered  into  this  the  13th  day  of 
Tvlarch.  1873,  between  L.  W.  Hall  of  the  county  of  Orange,  and  state 
of  North  Carolina,  of  the  one  part,  and  Evans  Turner,  of  the  county 
and  state  aforesaid,  of  the  other  part,  witnesseth,  that  the  said  L.  W. 
Hall  agrees  and  consents  for  the  said  Evans  Turner  to  back  water,  if 
necessary,  up  into  his  field,  on  condition  that  said  Evans  Turner  will 
allow  the  said  L.  W.  Hall  as  much  woodland  along  the  line  fence  on 
the  south  side  of  the  river.  Said  Turner  is  allowed  to  raise  a  dam  8  or 
9  feet  high.  This  agreement  to  remain  good  so  long  as  the  said  Turner 
keeps  up  a  mill  at  the  Wagoner  place ;  afterwards  to  be  null  and  void. 
Witness  our  hands  and  seals  the  day  and  date  above  written.  [Signed] 
L.W.Hall.  [Seal.]  Evans  Turner.  [Seal]  Witness :  H.  Y.  Har- 
ris." The  complaint  further  alleges  that,  at  the  time  of  the  execution 
of  said  agreement,  about  4  or  5  acres  of  woodland  of  said  Turner  were 
taken  possession  of  by  said  Hall,  and  that  he  used  the  same  until  his 
death,  in  1888;  that' said  Turner,  after  the  adoption  of  the  stock  law, 
in  1885,  hauled  off  all  the  fences  on  said  4  or  5  acres,  and  that  the  same 
were  mortgaged  in  1882  to  one  Gray ;  that  the  dam  raised  by  Turner 
is,  from  the  bottom  of  the  mud-sill  to  the  top  of  the  sheeting,  10  feet  3 
inches,  and  from  the  mud-sill  to  bottom  of  the  river  about  2  feet,  and 
the  land  of  the  plaintiff  which  is  flobded  and  damaged  by  said  milln 
pond  is  about  12  acres,  on  most-of  which  dower  has  been  assigned  to  the 
plaintiff  Fannie  J.  Hall ;  that  the  same  would  be  very  productive  if  ifot 
damaged  by  the  said  flooding ;  that  plaintiffs  have  not  continued  in  the 
possession  of  the  4  or  5  acres  south  of  the  river  since  the  death  of 
Evans  Turner. 

They  demand  judgment —  (1)  that  "the  license  granted  in  said  agree- 
ment" terminated  at  the  death  of  said  Turner,  in  1889,  and  is  void  for 
uncertainty  and  indefiniteness,  and  is  no  longer  operative  and  binding 
on  the  plaintiffs ;  (2)  that,  if  it  be  considered  as  running  with  the  land, 
the  quantity  of  land  damaged  be  ascertained,  and  the  same  quantity 
set  apart  to  the  plaintiffs  south  of  the  river,  if  said  dam  shall  not  ex- 
ceed the  height  allowed  in  said  agreement ;  (3)  that,  if  said  dam  be 
found  to  be  more  than  nine  feet  high,  then  they  ask  that  the  damages 
be  inquired  into,  and  for  judgment  for  the  same;  (4)  that,  if  plaintiffs 
are  compelled  to  take  the  land  south  of  the  river  in  lieu  of  that  flooded 
and  damaged,  the  defendants  be  required  to  free  the  same  from  all 
mortgages  and  incumbrances  existing  thereon ;  (5)  that  the  lands  of 
plaintiffs  be  freed  from  said  agreement,  and  the  defendants  keep  the 
land  on  the  south  side  of  the  river;  (6)  "that  the  dam  be  pulled  down, 
and  plaintiff's  be  paid  all  damages  done  them  during  the  life  of  said 
Turner  by  reason  of  his  violations  of  said  agreement,  and  since  that 
time  by  reason  of  said  dam ;"  (7)  that  all  damages  up  to  the  time  of 
the  trial  be  assessed ;  (8)  for  further  and  other  relief,  and  for  costs. 

The  defendants  in  their  answer,  admit  the  execution  of  said  agree- 
ment, and  that  the  land  on  the  south  of  the  river,  mentioned  in  the 
complaint,  was  taken  possession  of  by  Hall,  but  they  allege  that  the 


MODIFIED    FEES 


233 


quantity  is  underestimated,  and  that  the  same  is  equal  to  that  covered 
by  water  in  consequence  of  said  dam.  They  deny  the  removial  of  the 
fences.  They  admit  the  execution  of  the  mortgage.  They  deny  the 
raising  of  the  dam  to  the  height  alleged  by  plaintiffs.  They  deny  any 
damage  as  alleged,  and  aver  that,  if  there  be  any,  it  existed  and  v^as 
provided  for  at  the  time  of  the  execution  of  the  said  agreement,  by  the 
taking  possession  of  the  four  acres.  They  deny  that  the  plaintiff  has 
discontinued  the  use  of  said  land  since  the  death  of  Evans  Turner. 
They  deny  any  violation  of  said  agreement  by  said  Turner  or  them- 
selves, and  they  claim  that  said  agreement  operates  as  a  covenant  run- 
ning with  the  land. 

The  following  issues  were,  without  objection,  submitted  to  the  jury: 
"(1)  Has  the  dam  been  raised  above  nine  feet?  Answer.  No.  (2)  If 
so,  what  yearly  damages  have  the  plaintiffs  sustained  on  account  of 
same?  (3)  What  quantity  of  land  is  covered  by  water  ponded  back  by 
the  dam,  and  damaged  thereby?  (4)  What  quantity  of  land  is  em- 
braced in  the  tract  agreed  to  be  conveyed  by  Evans  Turner  to  plain- 
tiffs' intestate?     A.  Four  acres,  (by  consent.)"     *     *     *  12 

The  following  judgment  was  rendered:  "This  cause  having  been 
heard,  and  the  jury  for  its  verdict  having  said  that  the  dam  has  not 
been  raised  above  nine  feet,  and  the  court  being  of  the  opinion  that  the 
other  issues  submitted  are  not  material,  whether-  the  agreement  be- 
tween the  intestates  of  the  plaintiffs  and  defendants  respecting  the  erec- 
tion of  the  dam  is  a  license  revocable  at  the  death  of  Turner,  or  is  void 
for  uncertainty,  and  the  court  being  further  of  opinion  that  if  said 
agreement  is  a  covenant  perpetual  running  with  and  binding  the  land, 
then  the  equitable  aid  of  the  court  cannot  be  invoked  to  ascertain  and 
set  apart  to  the  plaintiffs  the  same  quantity  of  land  as  is  covered  by  wa- 
ter, for  that  there  is  neither  allegation  in  the  complaint  nor  proof  that 
the  defendants  have  ever  declined  or  refused,  or  do  now  decline,  to  per- 
mit the  plaintiffs  to  have,  use,  occupy,  and  enjoy  the  said  quantity  of 
land  in  as  full  and  ample  a  manner  as  the  said  covenant  or  agreement 
authorizes,  the  court  doth  therefore  adjudge  that  the  plaintiffs  take 
nothing  by  their  writ,  and  that  defendants  go  hence  without  day,  and 
recover  their  costs."    From  this  judgment  the  plaintiffs  appealed. 

Shepherd,  J.,  (after  stating  the  facts.)  After  a  careful  consid- 
eration of  the  charge  of  his  honor  in  reference  to  the  height  of  the  dam, 
we  are  of  the  opinion  that,  in  view  of  the  testimony,  there  was  no  er- 
ror, and  that  the  exception  of  the  plaintiffs  in  this  particular  must  be 
overruled. 

The  other  points  presented  in  the  record  are  not  so  clear,  and  we  ap- 
proach their  consideration  with  no  little  doubt  and  solicitude.  The 
plaintiffs  insist  that  the  right  of  the  defendants  to  maintain  the  dam 
and  overflow  the  plaintiffs'  land  determined  at  the  death  of  the  de- 
fendants' ancestor,  Evans  Turner ;    but,  if  they  are  mistaken  in  this^. 

12  Part  of  the  statement  of  facts  is  omitted. 


234  CONDITIONAL    OR    QUALIFIED    ESTATES 

they  pray  that  the  defendants,  the  heirs  of  said  Turner,  be  required 
to  ''allow"  the  plaintiffs  the  use  of  so  much  land  on  the  south  of  the 
river  as  will  equal  in  acreage  the  quantity  now  overflowed  and  damaged 
by  reason  of  the  maintenance  of  the  said  dam.  The  agreement  between 
the  said  Hall  and  Turner  is  of  a  very  peculiar  character,  and  so  vague 
and  uncertain  in  part  that  but  for  the  fact  of  its  having  been  executed 
by  one  of  the  parties,  who  has  erected  permanent  improvements,  we 
would  be  somewhat  inclined  to  place  it  under  that  class  of  contracts 
mentioned  by  Lord  Brougham  in  Keppell  v.  Bailey,  2  Mylne  &  K.  517, 
as  being  "so  clearly  inconvenient  to  the  science  of  the  law"  as  to  re- 
ceive no  encouragement  at  the  hand  of  the  courts.  Although  the  agree- 
ment contains  no  words  of  covenant,  we  think  that  in  consideration  of 
the  circumstances  an  equitable  construction  warrants  us  in  holding  that 
it  was  the  intention  of  Hall  to  confer  upon  Turner  an  easement  "to 
back  water,  if  necessary,  up  into  his  field."  Such  an  easement  is  "an 
incorporeal  hereditament ;  a  right  not,  indeed,  to  the  land  itself,  but  to 
a  privilege  on  and  upon  the  land.  *  *  *  .  It  is  a  freehold  interest," 
and  within  the  statute  of  frauds.  Bridges  v.  Purcell,  1  Dev.  &  B.  492. 
It  is  true  that  in  McCracken  v.  McCracken,  88  N.  C.  272,  it  is  said 
that  such  an  interest  must  not  only  be  evidenced  by  writing,  but  that  it 
can  "only  be  made  effectual  by  deed ;"  but  by  the  use  of  this  language 
the  learned  justice  who  delivered  the  opinion  was  evidently  referring 
to  the  subject  in  its  legal  aspects,  as  it  is  well  settled  that  an  agreement, 
upon  a  valuable  consideration,  to  confer  an  easement,  will  be  eft"ectuated 
in  equity,  provided  it  be  in  writing ;  and  this  without  reference  to  the 
presence  of  a  seal.  Railroad  v.  Battle,  66  N.  C.  546 ;  Richmond  &  D. 
R.  Co.  v.  Durham  &  N.  Ry.  Co.,  104  N.  C.  658,  10  S.  E.  659.  So,  too,  a 
covenant,  though  not  technically  "running  with  the  land."  may  never- 
theless be  sometimes  binding  in  equity,  to  the  extent  of  fastening  a 
servitude  upon  real  property.  Pom.  Eq.  Jur.  689;  Duke  of  Bedford  v. 
Trustees,  2  Mylne  &  K.  552. 

Such  is  the  character  of  the  agreement  before  us ;  but. the  important 
question  presented  is,  how  long  is  this  easement  or  servitude  to  con- 
tinue? An  interest  like  this,  being  within  the  statute  of  frauds,  is 
created  in  the  same  manner  as  an  interest  in  the  land  itself ;  and  hence 
it  would  seem  that,  if  there  be  a  grant  of  an  easement,  there  must  be 
words  of  inheritance,  if  it  is  intended  that  the  estate  shall  endure  be- 
yond the  life  of  the  grantee.  So,  on  the  other  hand,  if  there  be  a 
contract  to  confer  an  easement,  it  will  ordinarily  be  governed  by  the 
same  principles  as  are  usually  applied  to  contracts  for  the  sale  of  real 
estate.  Thus,  if  one  contract  to  sell  land  to  another,  and  there  be  no 
words  of  restriction,  it  is  implied  that  an  estate  in  fee  is  intended,  and 
specific  performance  will  accordingly  be  decreed.  Likewise,  if  one 
agree  to  confer  an  easement,  and  from  the  nature  of  the  contract,  and 
its  subject-matter,  there  is  nothing  to  show  that  it  is  to  be  restricted  to 
the  life  of  either  party,  there  is  an  implication  that  the  grant  is  to  be 
co-extensive  with  the  uses  apparently  contemplated  by  the  parties. 


MODIFIED   FEES  235 

In  our  case  it  is  contended  that  there  are  words  of  restriction,  to- 
wit:  "This  agreement  to  remain  good  so  long  as  the  said  Turner  keeps 
up  a  mill  at  the  Wagoner  place."  In  opposition  to  this  view  the  de- 
fendants rely  upon  the  case  of  Merriman  v.  Russell,  2  Jones,  Eq.  470. 
In  that  case  the  "articles  of  agreement"  contained  no  words  of  inherit- 
ance, but  simply  the  following  language,  viz. :  "Bargained  and  sold  so 
much  of  my  land  lying  on  Hooper's  creek,  in  the  county  and  state 
aforesaid,  as  will  conveniently  carry  the  water  to  a  saw-mill,  so  as  to 
be  to  his  [W.  R.  Gash's]  profit  and  advantage."  The  court  speaks  of 
this  writing  as  a  grant ;  and  Pearson,  C.  J.,  in  delivering  the  opinion, 
said :  "There  are  no  words  of  limitation,  and  by  the  rule  of  the  com- 
mon law,  in  reference  to  a  grant  of  land,  only  an  estate  for  the  life  of 
the  grantee  would  pass.  Here  the  rule  of  construction  comes  in  again. 
As  the  professed  purpose  is  to  convey  water  to  a  mill,  of  course  it  was 
the  intention  that  the  supply  of  water  should  be  kept  up  as  long  as  the 
party  wished  to  operate  the  mill.  Few  would  be  at  the,  expense  of 
erecting  a  mill  if  the  supply  of  water  depended  upon  the  uncertainty  of 
life.  We  think  there  was  a  base  or  qualified  fee  granted  in  this  ease- 
ment, and  that  Gash,  his  heirs  and  assigns,  are  entitled  to  it  so  long  as 
they  continue  to  operate  the  mill."  However  just  may  be  the  criticism 
upon  the  resort  to  construction  in  the  above  case,  and  thereby  supply- 
ing words  of  inheritance,  if  indeed  the  instrument  was  considered  sim- 
ply in  its  legal  character,  as  a  grant,  it  is  very  clear  that  the  objection 
cannot  be  urged  in  the  present  instance,  where  the  agreement  is  entire- 
ly executory  in  its  nature.  At  all  events  the  Case  of  Merriman,  supra, 
lends  us  valuable  aid  in  solving  the  question  now  before  us.  In  that 
case  the  easement  was  in  so  much  of  the  land  "as  will  conveniently 
carry  the  water  to  a  saw-mill  so  as  to  be  to  his  [W.  R.  Gash's]  profit 
and  advantage." 

Why  should  not  these  words  be  considered  as  equally  restrictive  as 
those  used  in  the  present  contract,  viz.,  "this  agreement  to  remain  good 
so  long  as  the  said  Turner  keeps  up  a  mill  at  the  Wagoner  place?"  In 
one  case  the  easement  is  to  be  to  "his  [the  grantee's]  advantage;"  in 
the  other,  so  long  as  "Turner  keeps  up  a  mill,"  etc.  It  would  seem  that 
the  privilege  granted  was  as  personal  in  one  case  as  in  the  other ;  but, 
admitting  that  there  is  a  shade  of  difiference  between  them,  yet  this 
must  surely  disappear  when  the  contract  is  viewed  in  the  light  of  the 
reasoning  of  the  opinion  in  the  case  above  mentioned.  "Few  [says 
the  court]  would  be  at  the  expense  of  erecting  a  mill  if  the  supply  de- 
pended upon  the  uncertainty  of  life;"  and  so,  too,  we  may  remark  in 
this  case  that  few  would  erect  a  mill-dam  and  other  improvements  if  its 
enjoyment  was  to  be  contingent  upon  the  duration  of  the  life  of  one 
of  the  parties.  In  consideration  of  the  foregoing  reasons,  and  in  the 
absence  of  plain  restrictive  language,  we  conclude  that  it  was  not  the 
intention  of  the  parties  that  Turner  was  to  have  a  mere  personal  right 
to  fl,ood  the  land  of  Hall,  but  that  the  easement  or  servitude  descended 


236  CONDITIONAL    OR    QUALIFIED    ESTATES 

with  the  land  to  the  heirs  of  Turner,  who  have,  in  equity,  a  base,  quaH- 
fied,  or  determinable  fee  therein. 

But  here  we  are  confronted  with  the  case  of  School  Committee  v. 
Kesler,  67  N.  C.  443,  in  which  Pearson,  C.  J.,  speaks  of  a  base  or  qual- 
ified fee  as  an  "obsolete  estate,  which  has  never  been  in  force  or  in 
use  in  this  state."  It  is  impossible  to  reconcile  the  conflicting  utter- 
ances of  that  distinguished  jurist  upon  this  subject.  Whenever  a  fee  is 
so  qualified  as  to  be  made  to  determine  or  liable  to  be  defeated  upon 
the  happening  of  some  contingent  event  or  act  the  fee  is  said  to  be  base, 
qualified,  or  determinable.  Tied.  Real  Prop.  44.  This  definition,  in  a 
general  sense,  comprehends  a  fee  upon  condition,  a  fee  upon  limita- 
tion, and  a  fee  conditional  at  common  law.  Some  authors  apply  the 
term  "base  fee"  solely  to  limitations  of  the  last-named  class,  (Tied. 
Real  Prop,  supra ;)  and  these  having  been  converted  into  estates  tail  by 
the  statute  de  donis,  and  these  latter,  by  our  statute,  into  fee-simple,  it 
would  of  course  follow  that  if  the  term  "base  fee"  is  exclusively  ap- 
plicable to  a  fee  conditional,  as  it  was  technically  known  at  common 
law,  it  no  longer  exists  in  this  state.  Blackstone's  classification  is  dif- 
ferent, (2  Bl.  Comm.  110,)  and  there  is  some  confusion  in  the  ancient 
authorities  upon  the  subject.  Practically,  however,  in  modern  times, 
the  terms  "base,"  "qualified,"  or  "determinable"  fees  are  applied  to  ei- 
ther of  the  estates  above  mentioned.  Mr.  Washburn  (1  Washb.  Real 
Prop.  77 ^  thinks  that  the  term  "determinable  fee"  is  "more  generic 
in  its  meaning,  embracing  all  fees  which  are  liable  to  be  determined 
by  some  act  or  event  expressed  on  their  limitation  to  circumscribe  their 
continuance,  or  inferred  by  law  as  bounding  their  extent."  See,  also,  1 
Prest.  Est.  466 ;   Seymor's  Case,  10  Coke,  97. 

The  term  "qualified  fee"  is  thought  to  be  preferable  by  Mr.  Minor. 
2  Inst.  86.  By  whatever  name  it  may  be  called,  it  is  plain  that  except 
in  the  case  of  technical  fees,  conditional  at  common  law,  the  limitations 
we  have  mentioned  may  still  be  made,  when  not  opposed  to  public  poli- 
cy. It  will  be  observed  that  in  Kesler's  Case  the  decision  was  made  to 
turn  chiefly  on  the  ground  of  public  policy,  and  because  apt  words  of 
limitation  were  not  employed.  In  that  very  decision  the  existence  of  a 
base  or  qualified  fee  is  recognized  in  the  Case  of  the  Cherokee  Tribe  of 
Indians.  87  N.  C.  229.  But,  however  broad  may  be  the  language  quot- 
ed, we  have  no  idea  that  it  was  the  purpose  of  the  chief  justice  to  say 
that  the  limitation  expressly  defined  by  him  as  a  base  or  qualified  fee 
in  Merriman's  Case  could  not  be  made  in  North  Carolina.  Such  limi- 
tations are  not  infrequent  in  this  and  other  states,  (2  Washb.  Real  Prop. 
4;)  and  we  are  not  prepared  to  adopt  a  view  which  leads  to  such  a 
revolution  in  the  law  of  limitations  of  real  property.  We  are  therefore 
of  the  opinion  that  Turner  and  his  heirs  took,  in  equity,  an  easement  to 
overflow  the  land  of  Hall,  determinable  when  they  ceased  to  keep  up 
the  said  mill. 

In  this  respect  it  is  a  limitation.  But  it  is  to  be  observed  that  this 
base,  qualified,  or  determinable  fee  (we  prefer  the  term  "qualified")  is 


MODIFIED   FEES  237 

liable  to  be  defeated  by  the  failure  of  Turner  "to  allow  the  said  L.  W. 
Hall  as  much  woodland  along  the  line  fence  on  the  south  side  of  the 
river."  In  this  particular  the  estate  in  the  easement  is  an  estate  upon 
condition,  and  the  condition  is,  in  effect,  that  Hall  is  to  be  allowed  to 
use  as  much  land  on  the  south  side  as  is  equal  to  the  land  which  is 
flooded  by  the  maintenance  of  the  dam  at  the  height  of  nine  feet.  jThjs 
includes,  not  only  the  land  actually  flooded,  but  all  that  is  damaged 
and  rendered  unfit  for  cultivation  by  sobbing.  Cagle  v.  Parker,  97  N. 
C.  271,  2  S.  E.  76.  It  seems  that,  soon  after  the  execution  of  the  agree- 
ment. Hall  was  put  in  possession  of  about  four  acres,  and  continued  to 
occupy  it  until  the  death  of  Turner. 

It  is  insisted  that  the  plaintiffs  are  restricted  to  this  particular  num- 
ber of  acres.  This  may  be  so  in  some  cases;  as,  for -instance,  where  a 
right  of  way  is  granted,  if  it  be  once  located  it  cannot  be  changed.  It 
may  also  be  true  of  contracts  generally  of  this  character,  but  we  do  not 
think  that  this  particular  contract  is  susceptible  of  such  a  construction. 
No  provision  is  made  for  the-  ascertainment  of  the  land,  nor  is  there 
anything  to  show  that  the  parties  intended  to  fix  upon  any  certain  quan- 
tity as  k  final  consideration  of  the  easement.  Had  they  so  intended, 
they  would  doubtless  have  provided  for  it  in  the  agreement.  The 
words  are  strict  words  of  condition,  and,  as  applied  to  this  case,  they 
constitute  a  condition  subsequent.  It  was  evidently  the  purpose  of  the 
parties  that  Hall  should  use  as  much  of  Turner's  land  as  would  equal 
the  quantity  flooded  by  the  dam,  and  that  this  agreement  was  to  be 
carried  out  in  good  faith,  and  in  view  of  the  exigencies  of  the  future. 
If  the  four  acres  taken  possession  of  by  Hall  were  to  be  in  full  satisfac- 
tion for  the  easement,  the  contract  should  have  so  stipulated.  The 
agreement  means  that  so  long  as  Turner,  his  heirs  or  assigns,  keep  up 
the  mill,  they  are  entitled  to  the  easement,  provided  they  permit  Sail 
and  his  heirs  or  assigns  to  enjoy  an  equal  quantity  of  land  on  the  south 
side  of  the  river.  If  they  refuse  to  perform  this  condition,  the  plain- 
tiffs are  entitled  to  a  decree  declaring  that  the  easement  is  at  an  end. 

As  we  have  indicated,  we  think  that  Hall  was  not  restricted  to'  the 
four  acres,  and  in  this  view  the  third  issue,  involving  an  inquiry  as  to 
the  quantity  of  land  flooded,  should  have  been  submitted  to  the  jury. 
If  it  should  be  found  that  more  than  the  four  acres  is  flooded  and  sob- 
bed, and  thus  rendered  unfit  for  cultivation,  by  the  maintenance  of  the 
dam  at  the  height  of  nine  feet,  the  defendants  must  "allow"  the  plain- 
tiffs the  use  of  an  equal  quantity  of  land.  It  was  this  uncertain  and 
variable  feature  of  the  agreement  that  seemed  at  the  outset  so  novel  to 
us,  and  it  is  because  of  this  that  the  plaintiffs  pray  that  the  agreernent 
be  declared  void.  As,  however,  the  contract  has  been  executed  by  the 
defendants  by  the  erection  of  permanent  improvements,  and  as  it  does 
not  contemplate  a  conveyance  of  any  land,  but  simply  a  right  to  occupy 
it,  we  think  that  it  would  be  inequitable  to  make  such  a  decree  until  it 
is  apparent  that  the  defendants  are  either  unwilling,  or  by  their  conduct 
have  put  it  out  of  their  power,  to  perform  the  condition. 


238  CONDITIONAL    OR    QUALIFIED    ESTATES 

The  fact  that  the  land  of  Turner  has  been  mortgaged  does  not,  of  it- 
self, work  a  forfeiture;  for  this  does  not  happen  until  there  has  been 
an  actual  disturbance  of  the  possession  of  the  plaintiffs.  As  to  the  four 
acres,  the  mortgagee  is  affected  with  constructive  notice  of  the  claim 
of  the  plaintiffs,  and  takes  subject  to  their  right  to  use  the  same.  If 
the  plaintiff's  should  be  allowed  the  use  of  an  additional  quantity  of 
land,  and  the  mortgagee  has  had  no  actual  notice,  then  he  would  take 
such  additional  land  free  from  any  claim  of  the  plaintiffs ;  and,  if  by 
reason  of  such  mortgage  the  plaintiffs  are  ousted,  there  would  then  be 
clearly  a  breach  of  the  condition,  and  the  easement  of  the  defendants, 
at  the  election  of  the  plaintiff's,  would  be  forfeited. 

If,  upon  another  trial,  it  be  found  that  more  than  four  acres  are 
flooded  and  sobbed,  then  the  defendants  should  submit  to  the  appoint- 
ment of  commissioners  to  lay  off  and  set  apart  sufficient  land  of  the 
defendants  for  the  use  of  the  plaintiffs  as  will  meet  the  requirements  of 
the  contract  as  interpreted  by  us.  It  is  said  that  there  is  no  allegation 
that  the  defendants  have  declined  to  allow  the  plaintiff's  the  relief  we 
have  indicated.  This  is  a  mistake,  as  the  plaintiffs  expressly  allege 
that  more  than  four  acres  have  been  flooded,  and  they  pray  that  if 
the  agreement  is  not  declared  void  "the  quantity  of  land  damaged  be 
ascertained,  and  the  same  quantity  set  apart  to  the  plaintiffs  south  of 
the  river,  if  said  dam  shall  not  exceed  the  height  allowed  in  the 
agreement."  The  answer,  in  effect,  denies  that  the  plaintiffs  are  enti- 
tled to  any  larger  quantity  than  the  said  four  acres. 

In  view  of  the  peculiarity  of  the  case,  we  are  not  surprised  at  the 
ruling  of  his  honor;  but,  after  much  consideration,  we  are  of  the  opin- 
ion that  for  the  reasons  given  there  should  be  a  newtrial. 


EQUITABLE   ESTATES — USES    AND    TRUSTS  239 


EQUITABLE  ESTATES— USES  AND  TRUSTS 
I.  The  Statute  of  Uses  ^ 


KIRKLAND  v.  COX. 
(Supreme  Court  of  Illinois,  ISSO.     94  111.  400.) 

Appeal  from  circuit  court,  Montgomery  county ;  Charles  S.  Zane, 
Judge. 

Ejectment  by  George  T.  Cox  and  others,  the  heirs  at  law  of  Mi- 
chael Walsh,  deceased,  against  Thomas  C.  Kirkland,  trustee  of  the 
estate  of  said  deceased.  There  was  judgment  for  plaintiffs,  and  de- 
fendant appeals.    Reversed. 

Michael  Walsh  died  on  the  23d  day  of  September,  1867,  leaving 
a  will  containing  the  following  provisions : 

"As  to  my  worldly  estate,  all  the  real,  singular,  personal  and  mixed, 
of  which  I  shall  die  seised  and  possessed,  or  to  which  I  may  be  enti- 
tled after  my  decease,  after  the  payment  of  all  just  debts,  demands 
and  funeral  charges,  I  hereby  grant,  devise,  convey  and  confirm  unto 
Horatio  M.  Vandeveer  of  Taylorville,  Christian  county,  Illinois,  and 
Charles  T.  Hodges,  of  Walshville,  Montgomery  county,  Illinois,  and 
Andrew  Sproule,  of  Saint  Louis,  Missouri,  reposing  in  each  of  said 
persons  full  trust  and  confidence:  in  trust,  however,  for  the  follow- 
ing purposes : 

"First.  I  desire  and  direct  my  said  trustees  to  assume  and  take  en- 
tire control  of  my  said  estate  during  the  term  or  terms  and  under  the 
conditions  hereinafter  expressed,  to  collect  all  outstanding  dues,  rents, 
profits  and  interests  of  whatever  character,  derived  therefrom,  and 
to  govern  and  control  all  such  interests  as  may  accrue  and  arise  to 
said  estate,  from  time  to  time,  and  to  make  such  disposal  of  said 
estate  as  shall  in  their  judgment  benefit  and  increase  the  value  of  said 
estate ;  and  especially  do  I  design  and  direct  Charles  T.  Hodges,  one 
of  my  said  trustees,  to  sell  all  the  real  estate  belonging  to  me  and 
situated  in  the  town  of  Pana,  Christian  county,  Illinois,  in  the  town 
of  Stanton,  Macoupin  county,  Illinois,  and  in  the  towns  of  Litchfield, 
Hillsboro  and  Walshville,  Montgomery  county,  Illinois.     *     *     * 

"Second.  I  desire  and  direct  that  said  trustees  shall  pay,  or  cause  to 
be  paid,  out  of  said  estate,  to  my  beloved  daughter  and  only  child, 
Mary  Lucy  Walsh,  such  installments  of  money  as  in  the  judgment  of 
my  said  trustees  shall  be  deemed  proper  and  sufficient  to  meet  her  cur- 
rent expenses,  and  provide  her  an  ample  and  comfortable  support. 

"Third.  When  my  said  daughter,  Mary  Lucy  Walsh,  shall  arrive  at 

1  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  120,  121. 


240  EQUITABLE   ESTATES — USES   AND    TRUSTS 

the  full  age  of  thirty-five  years,  and  is  then  unmarried,  I  desire  and 
direct  that  my  said  estate  shall  be  transferred  to  her  by  my  said  trus- 
tees, and  ever  thereafter  said  estate  shall  vest  in  her  and  be  under 
her  absolute  control. 

"Fourth.  It  is,  however,  provided  that  if  my  said  daughter  should, 
on  or  before  her  thirty-fifth  birthday,  become  married  to  a  person 
who  shall  be  deemed  and  considered  by  my  said  trustees  as  a  person 
worthy  and  competent,  and  in  whom  confidence  can  be  reposed,  then 
said  trustees  shall,  as  soon  as  they  become  satisfied  that  such  person  -is 
so  worthy,  place  the  whole  of  said  estate  under  the  control  of  my  said 
daughter,  and  ever  thereafter  said  estate  shall  be  vested  in  her  name, 
and  under  her  absolute  control  forever, 

"Fifth.  In  case  said  daughter  shall  be,  at  her  thirty-fifth  birthday, 
married  to  a  person  whom  said  trustees  shall  consider  and  deem  in- 
competent and  unworthy,  and  not  a  suitable  person  who  should  have 
any  care  or  control  of  said  estate  as  husband,  then  said  estate  shall 
continue  and  remain  vested  in  said  trustees  in  trust;  and  I  desire  and 
direct  said  trustees  to  continue  to  make  payments  to  said  daughter, 
in  such  amounts  and  at  such  times  as  in  their  judgment  they  may 
think  proper,  and  the  circumstances  and  station  of  said  daughter  may 
demand;  and  in  case  of  the  death  of  such  husband,  said  estate  shall 
vest  absolutely  in  and  be  under  the  control  of  said  daughter,  pro- 
vided she  shall  be  of  the  age  of  thirty-five  years.     *     *     *  " 

"Seventh.  In  case  my  said  daughter  shall  die  without  issue,  it  is  my 
wish  and  will,  and  I  hope  it  may  meet  with  her  approbation,  that  the 
whole  of  my  said  estate  shall  be  disposed  of  as  follows,  viz."  Then 
follow  certain  specified  legacies  to  individuals,  amounting,  in  the  ag- 
gregate, to  $2,600,  after  which  is  the  following :  "The  balance  of  my 
said  estate,  upon  the  happening  of  such  contingency,  viz.,  the  death 
of  my  daughter  without  issue,  I  wish  divided  equally  between  the 
'House  of  the  Good  Shepherd,'  situated  in  the  city  of  St.  Louis,  State 
of  Missouri,  'Saint  Joseph  Male  Orphan  Asylum,'  Washington  City, 
District  of  Columbia,  and  'Saint  Ann's  Infant  Asylum,'  of  Washington 
City,  District  of  Columbia." 

The  Mary  L.  Walsh  mentioned  in  the  will  was  the  only  child  and 
heir  at  law  of  Michael  Walsh,  and  she  died  July  18,  1875,  leaving 
plaintiffs  as  her  heirs  at  law  and  next  of  kin.  Defendant  is  adminis- 
trator de  bonis  non  of  the  Charles  T.  Hodges  mentioned  in  the  will, 
and  who  alone  qualified  as  trustee.  The  contingent  beneficiaries,  for 
whom  defendant  claimed  to  hold  possession,  are  duly  organized  cor- 
porations carrying  on  the  objects  for  which  they  were  incorporated. 

SciiOLi-iELD,  J.  In  this  form  of  action,  since  the  naked  legal  title 
must  control,  we  think  it  sufficient  to  show  that  title  is  not  in  appellees, 
and  the  judgment  below  cannot,  therefore,  be  sustained. 

The  rule  is,  undoubedly,  as  claimed  by  appellees'  counsel,  that  trus- 
tees must  be  presumed  to  take  an  estate  only  commensurate  with  the 


THE    STATUTE    OF    USES  241 

charges  or  duties  imposed  on  them;  but  this,  however,  is  subject  to 
the  quahfication  that  such  presumption  shall  be  consistent  with  the 
intention  of  the  party  creating  the  trust,  as  manifested  by  the  worcfs 
employed  in  the  instrument  by  which  it  is  created.  Shelley  v.  Edlin, 
4  Adol.  &  El.  582-589,  31  E.  C.  L.  143;  Cadogan  v.  Ewart,  7  Adol. 
&  El.  636,  666;  Davies  v.  Davies,  1  Adol.  &  El  (N.  S.)  430,  41  E. 
C.  L.  611. 

Under  the  statute  of  uses,  which  is  in  force  here,  where  an  estate 
is  conveyed  to  one  person  for  the  use  of  or  upon  a  trust  for  an- 
other, and  nothing  more  is  said,  the  statute  immediately  transfers  the 
legal  estate  to  the  use,  and  no  trust  is  created,  although  express  words 
of  trust  are  used.  Perry,  Trusts,  §  298.  And  so  we  have  expressly 
held.    Witham  v.  Brooner,  63  111.  344;   Lynch  v.  Swayne,  83  111.  336. 

But  this,  it  will  be  observed,  has  reference  only  to  passive  trusts,  or 
what  are  sometimes  termed  simple  or  dry  trusts ;  and  in  such  cases 
the  legal  estate  never  vests  in  the  feofifee  for  a  moment,  but  is  in- 
stantaneously transferred  to  the  cestui  que  use  as  soon  as  the  use  is 
declared.  2  Bl.  Comm.  (Sharswood's  Ed.)  331,  332;  and  Witham  v. 
Brooner,  supra. 

It  is  said  in  Perry  on  Trusts  (section  300) :  "Although  it  is  prob- 
able that  it  was  the  intent  of  the  statute  (i.  e.,  of  uses)  to  convert  all 
uses  or  trusts  into  legal  estates,  yet  the  convenience  to  the  subject 
of  being  able  to  keep  the  legal  title  to  an  estate  in  one  person,  while  the 
beneficial  interest  should  be  in  another,  was  too  great  to  be  given  up 
altogether,  and  courts  of  equity  were  astute  in  finding  reasons  to  with- 
draw a  conveyance  from  the  operation  of  the  statute.  Three  princi- 
pal reasons  or  rules  of  construction  were  laid  down  whereby  convey- 
ances were  excepted  from  such  operation :  First,  where  a  use  was 
limited  upon  a  use;  second,  where  a  copyhold  or  leasehold  estate,  or 
personal  property  was  limited  to  uses;  third,  where  such  powers  or 
duties  were  imposed  with-  the  estate  upon  a  donee  to  uses  that  it  was 
necessary  that  he  should  continue  to  hold  the  legal  title  in  order  to 
perform  his  duty  or  execute  the  power.  In  all  of  these  three  instances 
courts,  both  of  law  and  equity,  held  that  the  statute  did  not  execute 
the  use,  but  that  such  use  remained  as  it  was  before  the  statute,  a  mere 
equitable  interest  to  be  administered  in  a  court  of  equity."  And  again, 
in  section  305,  it  is  said :  "The  third  rule  of  construction  is  less  tech- 
nical, and  relates  to  special  or  active  trusts,  which  were  never  within 
the  purview  of  the  statute.  Therefore,  if  any  agency,  duty  or  power 
be  imposed  on  the  trustee,  as,  by  a  limitation  to  a  trustee  and  his  heirs 
to  pay  the  rents,  or  to  convey  the  estate,  or  if  any  control  is  to  be 
exercised  or  duty  performed  by  the  trustee  in  applying  the  rents  to  a 
person's  maintenance,  or  in  making  repairs,  or  to  preserve  contingent 
remainders,  or  to  raise  a  sum  of  money,  or  to  dispose  of  the  estate  by 
sale,  in  all  these  and  in  other  and  like  cases,  the  operation  of  the  stat- 
Bued.Cas.Real  Prop. — 16 


242  EQUITABLE   ESTATES — USES    AND    TRUSTS 

ute  is  excluded,  and  the  trusts  or  uses  remain  mere  equitable  estates. 
So,  if  the  trustee  is  to  exercise  any  discretion  in  the  management  of 
the  estate,  in  the  investment  of  the  proceeds  or  the  principal,  or  in  the 
application  of  the  income,  or  if  the  purpose  of  the  trust  is  to  protect 
the  estate  for  a  given  time,  or  until  the  death  of  some  one,  or  until 
division.  *  *  *  "  And  again,  in  regard  to  enlarging  and  extend- 
ing estates  given  to  trustees,  the  same  author,  in  section  315,  says: 
"So,  if  land  is  devised  to  trustees  without  the  word  heirs,  and  a  trust 
js  declared  which  can  not  be  fully  executed  but  by  the  trustees  taking 
an  inheritance,  the  court  will  enlarge  or  extend  their  estate  into  a 
fee  simple  to  enable  them  to  carry  out  the  intention  of  the  donors. 
Thus,  if  land  is  conveyed  to  trustees  without  the  word  heirs,  in  trust 
to  sell,  they  must  have  the  fee,  otherwise  they  could  not  sell.  The 
construction  would  be  the  same  if  the  trust  was  to  sell  the  whole  or 
a  part,  for  no  purchasers  would  be  safe  unless  they  could  have  the 
fee,  and  a  trust  to  convey  or  to  lease  at  discretion  would  be  subject 
to  the  same  rule.  A  fortiori,  if  an  estate  is  limited  to  trustees  and 
their  heirs,  in  trust  to  sell  or  mortgage  or  to  lease  at  discretion,  or 
if  they  are  to  convey  the  property  in  fee,  or  to  divide  it  equally  among 
;ertain  persons,  for  to  do  any  or  all  of  these  acts  requires  a  legal  fee." 
See,  also,  to  the  same  effect,  Hill,  Trustees  (4th  Am.  Ed.)  376;  Rees 
V.  Williams,  2  Mees.  &  W.  749. 

In  those  cases  where  the  legal  fee  is  not  vested  in  the  trustee,  it 
will,  of  course,  in  the  absence  of  a  devise  prevailing  to  the  contrary, 
vest  in  the  heir  at  law.  And  there  are  also  cases  in  which,  it  having 
been  the  duty  of  the  trustee  to  convey  to  the  heir  at  law,  it  will  be 
presumed,  after  the  lapse  of  considerable  time,  that  such  conveyance 
has  been  made.  Hill,  Trustees  (4th  Am.  Ed.)  401 ;  Perry,  Trusts,  §^ 
350 ;  Gibson  v.  Rees,  50  111.  383 ;  Pollock  v.  Maison,  41  111.  516.  But  it 
is  not  claimed,  nor  could  it  be,  that  there  is  any  foundation  for  such 
presumption  in  the  facts  found  in  this  record. 

.  In  Harris  v.  Cornell,  80  111.  67,  it  was  said,  referring  to  Hardin  v. 
Osborne,  Sept.  Term,  1875,  that  it  had  been  held  the  purposes  of 
a  trust  having  been  accomplished,  the  owner  of  the  trust  became,  by 
operation  of  law,  reinvested  with  the  legal  title  and  could  sue  in  eject- 
ment. This  was  unadvisedly  said.  A  rehearing  was  granted  in  Har- 
din V,  Osborne,  and  the  opinion  therein  referred  to  was  withdrawn. 
In  McNab  v.  Young,  81  111.  11,  language  of  like  import  as  that  used  in 
Harris  v.  Cornell,  supra,  was  used  upon  the  authority  of  the  same 
case,  although  it  is  therein  erroneously  referred  to  as  being  reported 
in  60  111.,  at  page  93.  The  case  there  reported,  of  that  name,  does 
not  discuss  that  or  any  kindred  question. 

The  true  doctrine  in  regard  to  active  trusts,  and  that  adhered  to  by 
this  court,  is  expressed  in  Vallette  v.  Bennett,  69  111.,  at  page  636, 
that  where  the  legal  title  is  vested  in  the  trustee,  nothing  short  of  a 
reconveyance  can  place  the  legal  title  back  in  the  grantor  or  his  heirs, 


THE   STATUTE   OF   USES  243 

subject,  of  course,  to  the  qualification  that,  under  certain  circum- 
stances, such  reconveyance  will  be  presumed  without  direct  proof 
of  the  fact. 

The  language  of  Walsh's  will  is :  "As  to  my  worldly  estate,  all  the 
real,  personal  and  mixed,  of  which  I  shall  die  seized  and  possessed, 
*  *  *  I  hereby  grant,  devise,  convey  and  confirm  unto"  (naming 
the  trustees),  "in  trust,"  etc.  He  then  directs  his  said  trustees  to  as- 
sume and  take  entire  control  of  his  estate ;  to  collect  all  outstanding 
dues,  rents,  profits  and  interests  of  whatever  character,  derived  there- 
from, and  to  govern  and  control  all  such  interests  as  may  accrue  and 
arise  to  said  estate  from  time  to  time;  to  make  such  disposal  of 
said  estate  as  shall  in  their  judgment  benefit  and  increase  the  value  of 
said  estate ;  that  said  trustees  "shall  pay,  or  cause  to  be  paid,  out 
of  said  estate,"  to  his  daughter,  Mary  Lucy,  "such  installments  of 
money  as  in  the  judgment  of  said  trustees  shall  be  deemed  proper  and 
sufficient  to  meet  her  current  expenses,  and  provide  her  an  ample  and 
comfortable  support;"  that  said  trustees  should  transfer  his  estate  to 
his  said  daughter  upon  her  reaching  the  age  of  35  years,  she  being 
then  unmarried,  but  if  then  married,  they  are  directed  to  transfer  the 
estate  to  her  only  upon  the  contingency  that  they  should  deem  her 
husband  a  person  in  whom  confidence  might  be  placed ;  but  if  the  trus- 
tees should  deem  the  husband  an  incompetent  and  unfit  person  to  have 
the  care  and  control  of  the  estate,  they  are  directed  to  continue  to 
make  payments  to  his  daughter,  "in  such  amounts  and  at  such  times 
as  in  their  judgment  they  may  think  proper,"  and  that  the  circum- 
stances and  station  of  his  daughter  may  demand ;  that  in  the  event  of 
the  death  of  his  daughter  without  issue,  certain  specific  legacies, 
amounting  to  some  $2,600  in  the  aggregate,  are  given,  and  the  balance 
of  his  estate  is  to  be  divided  equally  between  the  House  of  the  Good 
Shepherd,  Saint  Joseph's  Male  Orphan  Asylum,  and  Saint  Ann's 
Infant  Asylum ;  and  he  then  exempts  his  trustees  from  liability  for  all 
losses  occurring  without  their  fault. 

This  very  clearly  gave  the  entire  control  and  management  of  the 
estate  to  the  trustees  until  ]\lary  Lucy  should  arrive  at  the  age  of  35 
years — being  unmarried ;  and  she  having  died  before  she  reached 
that  age,  the  control  and  management  of  the  estate  continued  to  de- 
volve upon  them.  The  language  employed  so  plainly  conveys  this  idea 
that  it  can  admit  of  no  controversy. 

The  power  "to  make  such  disposal  of  the  estate  as  shall,"  in  the 
judgment  of  the  trustees,  "benefit  and  increase  the  value  of  said  es- 
tate,"— as  also  the  duty  of  paying  Mary  Lucy  "such  installments  of 
money  as  in  the  judgment  of  said  trustees  shall  be  proper  and  suffi- 
cient to  meet  her  current  expenses  and  provide  an  ample  and  com- 
fortable support," — necessarily  imply  the  power  to  sell  the  lands  and 
convert  them  into  money  or  interest  bearing  securities ;  for  this  might 
well,  in  the  judgment  of  the  trustees,  benefit  and  increase  the  estate^ 


244  EQUITABLE  ESTATES — USES    AND    TRUSTS 

and  be  essential  to  make  payment  of  the  sums  directed  to  be  paid  to 
Mary  Lucy,  The  power  impHed  to  sell,  is  to  sell  the  whole  title.— 
and  to  this  is  essential  the  power  to  convey  that  title,  requiring,  as 
a  condition  precedent,  a  fee-simple  estate  in  the  trustees. 

The  property  is  devised  to  the  trustees  to  sell  and  convey,  if  they 
deem  it  advisable,  or  to  hold  and  control  until  it  is  to  be  transferred  as 
directed ;  and  in  the  contingency  that  has  arisen,  it  was  intended  that 
it  should  be  the  duty  of  the  trustees  to  make  the  equal  division  of  the 
property  between  the  corporations  designated  and  convey  it  accord- 
ingly; for  the  grant  to  these  corporations  is  in  severalty,  and  not 
as  tenants  in  common,  and  their  title  must  necessarily  rest  on  the  con- 
veyance of  the  trustees. 

Whether  the  corporations  can  hold  or  not  is  not  now  material.  The 
words  of  the  devise  show  the  intention  of  the  testator  that  the  trus- 
tees should  take  a  fee,  whether  he  was  mistaken  in  the  law  as  respects 
the  objects  of  his  intended  bounty  or  not.  The  only  difference  w^ould 
be,  if  the  corporations  cannot  take,  the  trustees,  instead  of  holding 
the  legal  title  in  trust  for  them,  hold  it  in  trust  for  the  heirs  at  law. 
Hill,  Trustees  (4th  Am.  Ed.)  208,  209. 

The  legal  title,  then,  being  in  the  trustees,  the  heirs  at  law  could 
not  maintain  ejectment.  Perry,  Trusts,  §§  17,  328,  520;  Hill,  Trus- 
tees (4th  Am.  Ed.)  422,  423,  *274;  Id.  482,  *317;  Id.  672,  *428;  Id. 
784,  *503;   Bull.  &  T.  Trusts  &  Trustees,  p.  811. 

The  judgment  of  the  circuit  court  is  reversed.    Judgment  reversed.' 


II.  Creation  of  Express  Trusts  • 
1.  In  Ge:neraIv 


In  re  SMITH'S  ESTATE.* 

(Supreme  Court  of  Pennsylvania,  1S91.     144  Pa.  428,  22  Atl.  916,  27  Am.  St. 

Rep.  641.) 

Appeal  from  orphans'  court,  Philadelphia  county;    Hanna,  Judge. 

Accounting  of  the  Pennsylvania  Company  for  Insurance  on  Lives 
and  Granting  Annuities,  as  executor  of  the  estate  of  Thomas  Smith, 
deceased.  Henry  S.  Parmalee,  as  guardian  of  Thomas  Smith  Kelly, 
claimed  and  was  awarded  certain  bonds  left  by  testator,  on  the  ground 

2  That  trusts  are  uses  which  survived  the  statute  of  uses,  see  Fuller  v.  Miss- 
roon,  ante,  p.  31. 

8  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  132. 

*  Although  this  case  deals  with  the  creation  of  a  trust  of  personal  property, 
it  is  hi'ie  presented,  in  part,  for  its  clear  statements  of  certain  principles  ap- 
plicable to  trusts  in  general. 


CREATION    OF    EXPRESS    TRUSTS  245 

that  testator  held  them  in  trust  for  said  ward.    The  executor  appeals. 
Affirmed, 

CivARK,  J."*  The  appellant  is  the  Pennsylvania  Company  for  Insur- 
ance on  Lives  and  Granting  Annuities,  trustee  under  the  will  of 
Thomas  Smith,  deceased;  the  appellee,  Henry  S.  Parmalee,  guardian 
of  Thomas  Smith  Kelly,  a  minor.  The  proceeding  was  the  adjudi- 
cation of  an  account,  filed  by  the  trustee  under  the  will  of  Thomas 
Smith,  of  the  principal  and  income  of  $13,000  of  Pensacola  &  Atlantic 
Railroad  Company's  coupon  bonds,  which  the  said  trustees  claimed 
were  part  of  the  estate  of  decedent,  and  passed  to  them  under  his  will. 
The  guardian  of  Thomas  Smith  Kelly,  a  minor,  appeared  before  the 
auditing  judge,  and  claimed  that  the  bonds  had  been  held  by  the  tes- 
tator in  trust  for  said  minor,  and  should  be  awarded  to  the  latter's 
guardian.  The  auditing  judge  and  the  judges  of  the  orphans'  court 
sustained  the  guardian's  claim,  and  awarded  him  the  fund. 

The  owner  of  personal  property,  in  order  to  make  a  voluntary 
disposition  of  it,  may,  by  a  proper  transfer  of  the  title,  make  a  gift 
of  it  direct  to  the  donee,  or  he  may  impress  upon  it  a  trust  for  the 
benefit  of  the  donee.  It  is  well  settled,  however,  that  whether  a  gift 
or  a  trust  is  intended,  if  the  transaction  still  remains  imperfect  and 
executory,  equity  will  not  aid  in  its  enforcement.  The  expression  of 
a  mere  intention  to  create  a  trust,  therefore,  without  more,  is  insuffi- 
cient. Like  a  promise  to  give,  it  will  not  be  enforced  in  equity.  Dip- 
pie  V.  Corles,  11  Hare,  183;  Helfenstein's  Estate,  77  Pa.  328,  18  Am. 
Rep.  449,  Almost  all  trusts  are  in  a  certain  sense  executory.  Ordi- 
narily, a  trust  cannot  be  executed  except  by  conveyance.  There  is, 
in  most  cases,  something  to  be  done.  But  this  is  not  the  sense  in  which 
a  trust  is  said  to  be  executory.  An  executory  trust,  properly  so  called, 
is  one  in  which  the  limitations  are  imperfectly  declared,  and  the  donor's 
intention  is  expressed  in  such  general  terms  that  something  not  fully  de- 
clared is  required  to  be  done  in  order  to  complete  and  perfect  the  trust, 
and  to  give  it  effect.  When  the  limitations  of  a  trust  are  fully  and  per- 
fectly declared,  the  trust  is  regarded  as  an  executed  trust.  Egerton 
V.  Brownlow,  4  H.  L.  Cas.  210;  Cushing  v.  Blake,  30  N.  J.  Eq.  689; 
Pom.  Eq.  Jur,  §  1001,  Nor  in  such  case,  if  it  appear  that  the  inten- 
tion of  the  donor  was  to  adopt  either  one  of  these  methods  of  disposi- . 
tion,  will  a  court  resort  to  the  other  for  the  purpose  of  carrying  it 
into  effect.  What  is  clearly  intended  as  a  voluntary  assignment  or  a 
gift,  but  is  imperfect  as  such,  cannot  be  treated  as  a  declaration  of 
trust.  If  this  were  not  so,  an  expression  of  present  gift  would  in  all 
cases  amount  to  a  declaration  of  trust,  and  any  imperfect  gift  might 
be  made  effectual  simply  by  converting  it  into  a  trust.  There  is  no 
principle  of  equity  which  will  perfect  an  imperfect  gift,  and  a  court 
of  equity  will  not  impute  a  trust  where  a  trust  was  not  in  contempla- 

6  Part  of  tbe  opinion  is  omitted. 


246  EQUITABLE  ESTATES — USES    AND    TRUSTS 

tion.  Milroy  v.  Lord,  4  De  Gex,  F.  &  J.  264-274;  Flanders  v.  Blandy.. 
45  Ohio  St.  108,  12  N.  E.  321. 

Upon  the  same  ground  it  has  been  held  that  a  paper  of  a  testa- 
mentary character,  but  invalid  for  want  of  proper  execution,  cannot 
be  enlarged  or  converted  into  a  declaration  of  trust.  Warriner  v. 
Rogers,  L.  R.  16  Eq.  340.  In  Richards  v.  Delbridge,  L.  R.  18  Eq. 
11-13,  it  was  held,  overruling  Morgan  v.  Malleson,  L.  R.  10  Kq.  475, 
and  Richardson  v.  Richardson,  L.  R.  3  Eq.  686,  that  to  create  a 
trust  there  must  be  the  expression  of  an  intention  not  to  create  a 
present  gift,  but  to  become  a  trustee.  See,  also,  Milroy  v.  Lord,  supra ; 
Brett,  Lead.  Cas.  58;  Long's  Appeal,  86  Pa.  196.  Although  the 
cases  may  not  be  altogether  consistent,  the  rule  is  now,  we  think,  well 
settled  in  accordance  with  the  doctrine  declared  in  Richards  v.  Del- 
bridge,  supra,  that,  if  the  transaction  is  intended  to  be  effected  by 
gift,  the  court  will  not  give  It  effect  by  construing  it  as  a  trust.  It  is 
well  settled  that  nothing  can  take  effect  as  an  assignment  or  gift  which 
does  not  manifest  an  intention  to  relinquish  the  right  of  dominion  on 
one  hand  and  to  create  it  on  the  other.  If  the  donor  has  perfected 
his  gift  as  he  intended,  and  has  placed  the  subject  beyond  his  power 
or  dominion,  the  want  of  consideration  is  immaterial;  the  donee's 
right  will  be  enforced.  A  gift  can  only  be  effectual  after  the  intention 
to  make  it  has  been  accompanied  by  delivery  of  possession  or  some 
equivalent  act.  If  it  is  not,  the  transaction  is  not  a  gift,  but  a  con- 
tract merely.  If  a  trust  is  intended,  it  will  be  equally  effectual  whether 
the  donor  transfer  the  title  to  the  trustee  or  declare  that  he  himself 
holds  the  property  for  the  purposes  of  the  trust.  "It  is  well  settled 
that  the  owner  of  personal  property  may  impress  upon  it  a  valid  pres- 
ent trust,  either  by  a  declaration  that  he  holds  the  property  in  trust, 
or  by  a  transfer  of  the  legal  title  to  a  third  party  upon  certain  specified 
trusts ;  in  other  words,  he  may  constitute  either  himself  or  another 
person  trustee.  If  he  makes  himself  trustee,  no  transfer  of  the  sub- 
ject-matter of  the  trust  is  necessary;  but  if  he  selects  a  third  party, 
the  subject,  of  the  trust  must  be  transferred  to  him  in  such  mode  as 
will  be  effectual  to  pass  the  legal  title."  Bisp.  Eq.  78;  Perry,  Trusts, 
§§  96-98;  Hill,  Trustees,  117  et  seq. ;  Dickerson's  Appeal,  115  Pa. 
210,  8  Atl.  64,  2  Am.  St.  Rep.'  547. 

In  Richards  v.  Delbridge,  L.  R.  18  Eq.  11-13,  Sir  George  Jessel 
said :  "A  man  may  transfer  his  property  without  valuable  considera- 
tion in  one  of  two  ways :  He  may  either  do  such  acts  as  amount  in 
law  to  a  conveyance  or  assignment  of  the  property,  and  thus  completely 
divest  himself  of  the  legal  ownership,  in  which  case  the  person  who 
by  those  acts  acquires  the  property  takes  it  beneficially  or  on  trust, 
as  the  case  may  be ;  or  the  legal  owner  of  the  property  may,  by  one 
or  other  of  the  modes  recognized  as  amounting  to  a  valid  declaration 
of  trust,  constitute  himself  a  trustee,  and,  without  an  actual  transfer 
of  the  title,  may  so  deal  with  the  property  as  to  deprive  himself  of 


CREATION    OF    EXPRESS    TRUSTS  247 

its  beneficial  ownership,  and  declare  that  he  will  hold  it  from  that 
time  forward  in  trust  for  the  other  person."  Heartley  v.  Nicholson, 
L.  R.  19  Eq.  233,  is  to  the  same  effect.  If  the  donor  makes  a  third 
party  a  trustee,  he  must  transfer  to  him  the  subject  of  the  trust  in 
such  mode  as  will  be  effectual  to  pass  the  title.  The  transaction,  as 
in  the  case  of  a  gift,  to  be  eff'ectual,  must  be  accompanied  by  delivery 
of  the  subject  of  the  trust,  or  by  some  act  so  strongly  indicative  of 
the  donor's  intention  as  to  be  tantamount  to  such  a  delivery ;  but 
where  the  donor  makes  himself  the  trustee,  no  transfer  of  the  subject- 
matter  is  necessary.  Ex  parte  Pye,  18  Ves.  140,  Donaldson  v.  Donald- 
son, Kay,  711,  and  Crawford's  Appeal,  61  Pa.  52,  100  Am.  Dec.  609, 
are  illustrations  of  trusts  in  this  form.  In  such  cases  no  assignment 
of  the  legal  title  is  required,  for  the  nature  and  effect  of  the  transac- 
tion is  that  the  legal  title  remains  in  the  donor  for  the  benefit  of  the 
donee.  It  is  conceded  that,  as  the  bonds  of  the  Pensacola  &  Atlantic 
Railroad  Company — the  bonds  in  question — were  not  delivered  to 
Thomas  Smith  Kelly  by  Thomas  Smith,  the  transaction  cannot  be  sus- 
tained as  a  gift.  It  is  clear  that  a  gift  was  not  in  contemplation,  and 
the  only  question  for  our  determination  is  whether  or  not  a  complete 
and  valid  trust  was  created,  for  a  trust  would  seem  to  have  been 
conteniplated. 

There  is  no  certain  form  required  in  the  creation  of  a  trust.  In 
the  case  of  personal  property  or  choses  in  action,  trusts  may  be  proved 
by  parol.  If  the  declaration  be  in  writing,  it  is  not  essential,  as  a  gen- 
eral rule,  that  it  should  be  in  any  particular  form.  It  may  be  couched 
in  any  language  which  is  sufficiently  expressive  of  the  intention  to 
create  a  trust.  "Three  things,  it  has  been  said,  must  concur  to  raise 
a  trustj-^sufficient  words  to  create,  a  definite  subject,  and  a  certain  or 
ascertained  object;  and  to  these  requisites  may  be  added  another, 
viz.,  that  the  terms  of  the  trust  should  be  sufficiently  declared."  Bisp. 
Eq.  65,  citing  Cruwys  v.  Colman,  9  Ves.  323 ;  Knight  v.  Boughton, 
11  Clark  &  F.  513.  The  intention  must  be  a  complete  one,  and  this 
requisite  is  especially  applicable  to  trusts  created  by  voluntary  dispo- 
sitions. "A  mere  inchoate  and  executory  design  is  not  enough,  and, 
unless  there  is  some  distinct  equity, — as  fraud,  for  example, — it 
cannot  be  enforced."  Bisp.  Eq.  65.  The  intention  n]ust  be  plainly 
manifest,  and  not  derived  from  loose  and  equivocal  expressions  of 
parties,  made  at  different  times,  and  upon  different  occasions;  but 
any  words  which  indicate  with  sufficient  certainty  a  purpose  to  create 
a  trust  will  be  effective  in  so  doing.  It  is  not  necessary  that  the  terms 
"trust"  and  "trustee"  should  be  used.  The  donor  need  not  say  in 
so  many  words,  "I  declare  myself  a  trustee,"  but  he  must  do  some- 
thing which  is  equivalent  to  it,  and  use  expressions  which  have  that 
meaning,  for,  however  anxious  the  court  may  be  to  carry  out  a  man's 
intention,  it  is  not  at  liberty  to  construe  words  otherwise  than  ac- 
cording to  their  proper  meaning,     Richards  v.  Delbridge,  supra. 


2'18  EQUITABLE   ESTATES USES    AND    TRUSTS 

In  Heartley  v,  Nicholson,  supra,  Vice-Chancellor  Bacon  says:  "It 
is  not  necessary  that  the  declaration  of  a  trust  should  be  in  terms  ex- 
plicit, but  what  I  take  the  law  to  require  is  that  the  donor  should 
have  evinced  by  his  acts,  which  admit  of  no  other  interpretation,  that 
he  himself  had  ceased  to  be,  and  that  some  other  person  had  become, 
the  beneficial  owner  of  the  subject  of  the  gift  or  transfer,  and  that 
such  legal  right  of  it,  if  any,  as  he  retained,  was  held  in  trust  for 
the  donee."  "The  one  thing  necessary,"  says  the  same  learned  judge 
in  Warriner  v.  Rogers,  supra,  "to  give  validity  to  a  declaration  of 
trust, — the  indispensable  thing, — I  take  to  be  that  the  donor  or  gran- 
tor, or  whatever  he  may  be  called,  should  have  absolutely  parted  with 
that  interest  which  had  been  his  up  to  the  time  of  the  declaration ; 
should  have  effectually  changed  his  right  in  that  respect,  and  put  the 
property  out  of  his  power,  at  least  in  the  way  of  interest."  The 
acts  or  words  relied  upon  must  be  unequivocal,  plainly  implying  that 
the  person  holds  the  property  as  trustee.  Martin  v.  Funk,  75  N.  Y. 
134,  31  Am.  Rep.  446.  Therefore,  in  Young  v.  Young,  80  N.  Y. 
422,  36  Am.  Rep.  634,  where  the  donor  signed  a  paper  certifying 
simply  that  certain  bonds  belonged  to  his  sons,  but  did  not  declare 
in  any  words  of  plain  import  that  he  held  them  in  trust  for  them, 
the  declaration  was  held  to  be  insufficient.  In  Helfenstein's  Estate,  17 
Pa.  328,  18  Am.  Rep.  449,  Mr.  Justice  Sharswood  says:  "There  is 
no  prescribed  form  for  the  declaration  of  a  trust.  Whatever  evinces 
the  intention  of  the  party  that  the  property,  of  which  he  is  the  legal 
owner,  shall  beneficially  be  another's,  is  sufficient."     *     ♦     * 


2.  Extent  oi?  Trustee's  Estate 


See  Kirkland  v.  Cox,  ante,  p.  239. 


3.  Parties 


STEARNS  V.  FRALEIGH. 

(Supreme  Court  of  Florida,  1S97.    39  Fla.  603,  23  South.  18,  39  L.  R.  A.  70."..) 

Appeal  from  circuit  court,  Gadsden  county;  William  D.  Barnes, 
Judge. 

Bill  by  Louis  A.  Fraleigh  and  others  against  R.  C.  Stearns  and 
another  for  the  cancellation  of  a  certain  deed,  and  the  appointment  of 
a  trustee.  From  a  decree  appointing  a  trustee,  and  declaring  that  the 
deed  only  conveyed  the  interest  of  one  Mary  A.  Fraleigh,  defendant, 
Stearns  appeals.    Modified. 


CREATION    OF    EXPRESS   TRUSTS  249 

On  June  4,  1890,  appellees  filed  their  bill  in  equity  in  the  circuit 
court  of  Gadsden  county,  making  appellant  and  one  Mary  A.  Fra- 
leigh  defendants  thereto.  An  amended  bill  was  filed  by  appellees 
April  16,  1891,  whereby  it  was  alleged  that  on  January  18,  1864, 
Emanuel  M.  Fraleigh,  husband  of  defendant  Mary  A.  Fraleigh,  ex- 
ecuted a  trust  deed  of  conveyance  to  one  Samuel  B.  Love,  a  certified 
copy  of  which  was  made  a  part  of  the  bill.  The  deed  referred  to 
purported  to  be  made  for  and  in  consideration  of  the  great  love  and 
affection  which  the  grantor  bore  towards  his  wife,  Mary  A.  Fraleigh, 
and  his  children,  Lillie  C,  Cornelia  M.,  and  Clara  W.  Fraleigh,  as 
well  as  in  consideration  of  the  sum  of  $10  to  the  grantor  paid ;  and 
it  conveyed  to  Samuel  B.  Love,  his  heirs  and  assigns,  certain  real  and 
personal  property  in  Gadsden  county,  therein  described.  The  deed 
contained  the  following  provisions :  "To  have  and  to  hold  the  afore- 
granted  property  to  the  said  S.  B.  Love,  his  heirs  and  assigns,  in  trust, 
nevertheless,  for  the  sole  use  of  the  said  Mary  A.  Fraleigh,  wife  of 
the  said  E.  M.  Fraleigh,  for  and  during  her  natural  life,  and  after  her 
death  to  such  children  as  she  may  have  living  at  the  time  of  her  death, 
share  and  share  alike,  with  power  to  the  said  Samuel  B.  Love  to 
sell  any  portion  of  said  trust  estate,  and  to  reinvest  the  proceeds  in 
such  other  property,  subject  to  the  above-described  trust,  as  he  shall 
deem  most  for  the  interest  of  said  trust  estate,  with  power  to  the 
said  Mary  A.  Fraleigh  to  appoint  and  choose,  by  her  writing  under 
her  seal,  another  trustee  instead  of  the  said  Samuel  B.  Love,  when- 
ever the  said  Samuel  B.  Love  shall  wish  to  resign  said  trust,  or  shall 
die  leaving  the  same  unfulfilled ;  said  trustee  so  appointed  taking  said 
trusteeship  subject  to  the  trust  herein  limited." 

It  was  further  shown  by  the  amended  bill  that  on  May  23,  1866, 
Samuel  B.  Love  executed  under  seal,  and  in  the  presence  of  two  sub- 
scribing witnesses,  an  instrument  in  writing  whereby,  after  reciting 
that  said  Love  was  holding  in  trust  certain  lands,  etc.,  for  Mary  A. 
Fraleigh  and  her  children,  more  fully  set  forth  and  described  in  the 
trust  deed  above  described,  he  did  thereby  resign  and  relinquish  said 
trusteeship,  as  by  the  provisions  of  said  trust  deed  he  claimed  the 
right  and  authority  to  do;  and  on  the  same  day  Mary  A,  Fraleigh 
executed  under  seal,  and  in  the  presence  of  two  subscribing  witnesses, 
an  instrument  in  writing,  whereby,  after  reciting  the  trust  deed  before 
referred  to,  and  its  provision  empowering  her  to  appoint  or  choose 
another  trustee  whenever  the  said  Love  wished  to  resign,  and  that 
said  Love  had  resigned  the  trusteeship,  leaving  same  unfulfilled,  she 
did,  by  virtue  of  the  authority  vested  in  her  by  said  trust  deed,  con- 
stitute and  appoint  E.  M.  Fraleigh  trustee  in  lieu  of  said  Love.  Each 
of  these  instruments  was  proven  by  a  subscribing  witness,  and  record- 
ed in  the  clerk's  office  of  Gadsden  county  on  August  23,  1866. 

It  was  further  alleged  by  said  amended  bill  that  appellant  was  in 
possession  of  certain  lands  described  in  the  trust  deed,  claiming  title 


250  EQUITABLE   ESTATES — USES   AND   TRUSTS 

to  same  by  virtue  of  a  deed  from  one  Samuel  JKamblin,  who  received 
deeds  to  said  lands  from  Mary  A.  and  E.  M.  Fraleigh  (the  latter  pre- 
tending to  execute  said  deeds  as  trustee),  dated  January  20,  1874; 
that  the  property  embraced  in  said  deed  had  "run  down,"  and  was 
"going  to  waste,"  and  that  appellees  had  received  no  benefits,  rents,  or 
profits  therefrom  since  the  date  of  said  deed  to  Hamblin ;  that  ap- 
pellant and  Samuel  Hamblin  combined  and  confederated  with  E.  JNI. 
Fraleigh  and  other  persons  to  destroy  the  force  and  eft'ect  of  the 
trust  deed,  and  to  deprive  appellees  of  all  benefits  that  might  arise  from 
the  proper  control  and  management  of  the  property,  in  order  that  ap- 
pellant might  obtain  title  thereto  and  possession  thereof,  and  that  the 
title  passed  to  the  said  Samuel  Hamblin  for  little  or  no  consideration ; 
that  the  proceeds  of  the  sale  were  not  reinvested  as  required  by  the 
trust  deed,  and  that  appellant  knew  that  fact ;  that  the  appointment  of 
Emanuel  M.  Fraleigh  as  trustee  was  unauthorized,  null,  and  void,  the 
said  Mary  A.  Fraleigh  being  under  coverture,  the  wife  of  said  E.  M. 
Fraleigh,  at  the  time  of  making  such  appointment ;  that  the  deeds  made 
by  virtue  of  said  appointment,  by  E.  M.  Fraleigh,  pretended  trustee^ 
and  the  said  Mary  A.  Fraleigh,  to  Samuel  Hamblin,  and  the  one  from 
Hamblin  to  appellant,  passed  no  title,  and  were  null  and  void. 

It  was  further  alleged  that  Samuel  B.  Love  and  E.  M.  Fraleigh 
were  dead;  that  appellees  Louis  A.,  Albert  E.,  Lillie  F.,  Alliene,  and 
Emily  were  the  only  surviving  children  of  Mary  A.  Fraleigh,  and  were 
all  over  21  years  of  age,  except  Alliene  and  Emily,  who  were  about  20' 
years  of  age.  The  consideration  expressed  in  the  deeds  from  Fra- 
leigh and  wife  to  Hamblin  was  $700. 

The  bill  prayed  that  the  appointment  of  E.  M.  Fraleigh  to  be  trus- 
tee, the  deeds  to  Samuel  Hamblin,  and  the  deed  to  appellant  be  de- 
clared illegal,  null  and  void ;  that  appellant  be  required  to  produce  the 
deeds  in  court  for  cancellation ;  that  a  trustee  be  appointed,  vice  Sam- 
uel B.  Love,  deceased, — and  for  general  relief. 

The  separate  answer  of  appellant  to  the  amended  bill  of  complaint 
filed  May  19,  1891,  admitted  the  execution  of  the  trust  deed  by  E.  M. 
Fraleigh ;  the  appointment  of  E.  M.  Fraleigh  to  be  trustee  by  Mary 
A.  Fraleigh ;  the  resignation  of  S.  B.  Love  as  trustee ;  that  appellant 
was  in  possession  of  certain  land  described  in  the  trust  deed,  and 
claimed  same  under  a  deed  from  Samuel  Hamblin,  who  acquired  title 
to  same  by  deeds  from  Mary  A.  Fraleigh  and  Emanuel  M.  Fraleigh, 
as  trustee, — and  denied  that  the  property  had  run  down  or  was  going 
to  waste,  that  the  lands  passed  to  Hamblin  for  little  or  no  considera- 
tion, that  the  proceeds  of  sale  were  not  reinvested  as  required  by 
the  trust  deed,  and  that  appellant  knew  that  fact. 

Appellant  by  his  answer  also  denied  all  charges  of  combination  and 
confederacy  made  against  him  in  the  bill,  and  alleged  that  he  pur- 
chased the  lands  mentioned  in  the  bill  from  Samuel  Hamblin  in  March, 


CREATION    OF    EXPRESS    TRUSTS  251 

1878,  in  good  faith,  and  without  notice  of  any  equities  claimed  by 
appellees,  paying  therefor  the  sum  of  $1,500. 

The  case  was  set  down  for  hearing  on  amended  bill  and  answer  of 
appellant,  and  on  November  4,  1893,  a  decree  was  rendered  where- 
by it  was  decreed  that  the  appointment  of  E.  M.  Fraleigh  to  be  trus- 
tee, by  Mary  A.  Fraleigh,  his  wife,  was  illegal,  null,  and  utterly  void ; 
that  the  deeds  from  E.  M.  Fraleigh,  as  trustee,  and  his  wife,  Mary 
A.  Fraleigh  to  Samuel  Hamblin,  passed  whatever  right,  title,  or  in- 
terest Mary  A.  Fraleigh  might  have  had  in  the' property  attempted  to 
be  thereby  conveyed,  but  did  not  pass  any  right,  title,  or  interest  of  the 
children  of  Mary  A.  Fraleigh,  and  as  to  such  children  the  deeds  were 
absolutely  null,  void,  and  of  no  effect  whatever;  that  the  deed  from 
Hamblin  to  appellant  passed  no  title  whatever  to  any  lands  embraced 
in  the  original  trust  deed,  except  the  interest  or  estate  which  Mary  A. 
Fraleigh  had  therein,  and  which  she  might  have  conveyed  to  Samuel 
Hamblin  in  the  deeds  to  him  before  mentioned,  and  that  for  any 
other  purpose,  or  to  any  other  extent,  the  said  deed  from  Hamblin  to 
appellant  was  utterly  null,  void,  and  of  no  eft'ect;  that  D.  McMillan 
be,  and  he  was  thereby,  appointed  trustee,  to  take  charge  of,  recover, 
and  manage  the  lands  described  in  the  trust  deed  from  Fraleigh  to 
Love,  so  far  as  the  interest  and  estate  of  the  children  of  Mary  A. 
Fraleigh  extended,  subject  to  the  same  trust  and  powers  as  mentioned 
in  the  original  trust  deed  in  respect  to  said  children. 

From  this  decree  Stearns  entered  his  appeal  on  March  24,  1894,  to 
our  June  term,  1894,  claiming  in  his  petition  of  appeal  that  the  court 
erred  in  decreeing  (1)  that  the  appointment  of  E.  M.  Fraleigh  as 
trustee,  by  his  wife,  was  illegal  and  void;  (2)  that  the  deeds  from 
Fraleigh,  trustee,  and  his  wife,  to  Samuel  Hamblin,  did  not  pass  to 
Hamblin  any  right  or  interest  of  Mary  A.  Fraleigh's  children,  but  that 
as  to  them  the  deeds  were  absolutely  null  and  void ;  (3)  that  the  deed 
from  Hamblin  to  appellant  passed  only  the  interest  of  Mary  A.  Fra- 
leigh in  the  lands  conveyed,  and  tO'  any  further  extent  was  null  and 
void;   (4)  the  appointment  of  D.  McMillan  to  be  trustee. 

Carter,  J.  (after  stating  the  facts).  The  appellant  having  failed 
to  argue  the  fourth  error  assigned  in  the  petition  of  appeal,  we  treat 
it  as  abandoned.  The  principal  question  involved  by  the  other  as- 
signments is  whether  the  appointment  of  E.  M.  Fraleigh  to  be  trustee, 
by  his  wife,  under  the  power  of  appointment  given  her  by  the  terms 
of  the  trust  deed,  was  a  valid  act.  If  so,  and  the  deeds  to  Hamblin 
passed  title,  the  appellant,  being  a  purchaser  for  value  from  him, 
without  notice  of  any  equities  claimed  by  appellees,  would  obtain  a 
good  title.  Saunders  v.  Richard,  35  Fla.  28,  16  South.  679.  The  hear- 
ing in  the  court  below  was  upon  bill  and  answer,  and  it  will  be  ob- 
served that  the  answer  denied  that  the  sale  to  Hamblin  was  for  little 
or  no  consideration,  that  the  proceeds  of  the  sale  had  not  been  re- 
invested, and  all  charges  of  fraud  and  conspiracy  on  the  part  of  ap- 


252  EQUITABLE  ESTATES — USES    AND    TRUSTS 

pellant  to  obtain  title  to  the  property.  The  deeds  to  Hamblin  express- 
ed a  consideration  of  $700,  and,  in  the  absence  of  actual  notice,  the 
appellant  could  only  be  charged  with  constructive  notice  to  the  extent 
of  that  furnished  by  the  record  of  the  trust  deed,  and  of  those  to  Ham- 
blin. 

It  is  insisted  by  appellees  that  the  appointment  of  E.  M.  Fraleigh 
to  be  trustee  was  void,  because — First,  the  trustee.  Love,  could  not, 
after  having  accepted  the  trust,  resign  or  renounce  it;  second,  a  mar- 
ried woman  cannot  appoint  her  husband  trustee  of  a  trust  created  by 
him  for  the  benefit  of  herself  and  children;  third,  the  execution  of 
the  instrument  of  appointment  was  not  joined  in  by  Mrs.  Fraleigh' s 
husband,  nor  did  she  acknowledge  its  execution  separate  and  apart 
from  her  husband. 

1.  The  general  rule,  that  a  trustee  cannot,  after  having  accepted  a 
trust,  resign  or  renounce  it  at  his  pleasure,  contended  for  by  appellees, 
in  unquestionably  correct;  but  it  is  equally  true  that,  where  the  in- 
strument creating  the  trust  empowers  a  trustee  to  resign  after  ac- 
ceptance, a  resignation  in  the  manner  pointed  out  by  such  instrument 
will  be  valid.  1  Perry,  Trusts,  §  274;  2  Lewin,  Trusts,  *646;  Tiff. 
&  Bui.  Trusts,  p.  536.  It  is  not  denied  that  the  trust  deed  authorized 
Mr.  Love  to  resign,  nor  that  his  resignation  was  in  strict  accordance 
with  the  authority ;  but  the  appellees  ask  us  to  construe  the  written 
resignation  as  a  refusal  to  accept  the  trust,  and  it  is  insisted  that  Mrs. 
Fraleigh  had  no  authority  to  appoint  another  trustee  in  case  of  Mr. 
Love's  refusalto  accept  the  trust,  but  only  in  the  event  of  his  resig- 
nation. The  instrument  expressly  recites  the  fact  that  Mr.  Love  was 
holding  property  in  trust,  and  it  referred  to  the  trust  deed  for  a  de- 
scription of  the  property  so  held,  and  to  its  provisions  authorizing  him 
to  resign.  If  he  was  holding  the  property  in  trust,  as  declared  by  this 
instrument,  he  had  accepted  the  trusteeship,  and  the  instrument  was 
what  it  purported  to  be, — a  resignation  of  the  trust,  and  not  a  refusal 
to  accept  it. 

2.  It  is  argued  by  appellees  that  the  appointment  of  E.  M.  Fra- 
leigh as  trustee  of  a  trust  created  by  him  for  his  wife  and  children 
would  defeat  the  object  of  the  trust,  and  his  acceptance  would  amount 
to  a  revocation  thereof ;  and  we  are  referred  to  the  case  of  Robinson 
V.  Dart's  Ex'rs,  Dud.  Eq.  (S.  C.)  128,  31  Am.  Dec.  569,  and  to  the 
cases  of  Richards  v.  Chambers,  10  Ves.  580,  Magwood  v.  Johnson,  1 
Hill,  Eq.  (S.  C.)  228,  and  Ewing  v.  Smith,  3  Desaus.  (S.  C.)  41'7,  5 
Am.  Dec.  557,  cited  therein,  as  sustaining  this  proposition.  The  last 
two  cases  have  no  reference  to  the  question  under  consideration.  The 
case  of  Richards  v.  Chambers,  10  Ves.  580,  as  quoted  in  the  first- 
named  case,  would  go  far  towards  sustaining  the  contention  of  ap- 
pellees, but  a  reference  to  the  official  report  of  the  case  shows  that  it 
sustains  the  contrary  view.  There,  the  property,  by  a  marriage  set- 
tlement, was  secured  to  the  sole  and  separate  use  of  the  wife  for  life. 


CEEATION    OF    EXPRESS    TRUSTS  253 

and,  if  she  survived  her  husband,  to  her  absolutely ;  but,  if  she  died 
before  her  husband,  it  was  to  go  to  such  persons  as  she  by  will  or 
deed  might  appoint,  and  in  default  of  appointment,  to  her  executors 
or  administrators.  The  husband  and  wife  by  petition  applied  to  have 
a  part  of  the  trust  property  then  in  court  transferred  to  them ;  the 
wife  having  executed  an  appointment  in  favor  of  the  husband,  and 
expressed  a  desire,  upon  an  examination  de  bene  esse,  that  the  peti- 
tion be  granted.  The  court  said :  "The  wife,  having  a  separate  estate 
for  life,  might,  according  to  the  doctrine  of  many  cases,  part  with  that 
life  interest.  She  might  also  execute  an  appointment  in  favor  of  her 
husband,  or  of  any  person,  which  appointment,  in  the  event  of  her 
death  in  his  life,  would  be  a  valid  and  effectual  disposition  of  the 
property.  But  the  question  is  whether  the  contingent  interest  which 
the  wife,  while  sui  juris,  has  secured  to  herself  in  the  event  of  her  sur- 
viving her  husband,  can,  through  the  interposition  of  this  court,  be 
given  up  by  her  while  in  a  state  of  coverture." 

The  question  in  that  case  was  as  to  a  contingent  interest,  over  which 
the  wife  had  no  power  of  appointment  by  contract ;  and  the  propo- 
sition was  distinctly  recognized  that  she  could  exercise  a  power  of 
appointment,  even  in  favor  of  her  husband.  In  Robinson  v.  Dart's 
Ex'rs,  Dud.  Eq.  (S.  C.)  128,  application  was  made  to  a  court  of  equity 
to  appoint  a  husband  trustee  for  his  wife.  The  court  declined  to  ap- 
point him,  or  to  direct  that  the  wife's  separate  property  be  turned 
over  to  him ;  holding,  not  that  he  was  incompetent  or  disqualified,  but 
that  he  was  an  improper  person  to  whom  to  commit  the  trusteeship 
The  reasons  advanced  by  the  court  were  that,  if  appointed,  he  would 
be  constantly  tempted  to  use  the  authority  and  influence  of  a  husband 
to  assume  the  disposal  of  the  property  to  his  own  uses,  and  induce  his 
wife's  acquiescence,  and  that  a  court  of  equity  should  not  place  a 
wife  in  such  a  situation  that  she  might  be  compelled  to  go  into  equity 
to  call  her  husband  to  account  for  breaches  of  his  duty  as  trustee. 
To  the  same  effect,  see  Boykin  v.  Ciples,  2  Hill,  Eq.  (S.  C.)  200,  29 
Am.  Dec.  67;  Ex  parte  Hunter,  Rice,  Eq.  (S.  C.)  293;  Dean  v.  Lan- 
ford,  9  Rich.  Eq.  (S.  C.)  423.  In  none  of  the  cases  referred  to  by 
appellees  was  any  question  involved  as  to  whether,  under  a  power  to 
appoint  new  trustees,  a  married  woman  could  appoint  her  husband ; 
nor  was  it  held  that  a  husband  was  incompetent  or  disqualified  to  be 
a  trustee  for  his  wife.  There  is  a  very  clear  and  obvious  distinction 
between  the  incompetency  and  the  unfitness  of  a  person  for  the  position 
of  trustee,  and  between  the  power  of  an  individual  to  select  a  trustee, 
and  the  duty  of  a  court  in  appointing  one.  Forster  v.  Abraham,  L.  R. 
17  Eq.  351. 

The  general  rule  is  that  any  person  may  be  appointed  a  trustee 
who  is  capable  of  confidence,  of  holding  real  and  personal  property, 
and  of  executing  the  trust.  3  Kerr,  Real  Prop.  §  1728;  1  Perry, 
Trusts,  §  39;  Tiff.  &  Bui.  Trusts,  325.     It  is  not  denied  that  the  hus- 


254  EQUITABLE  ESTATES — USES    AND    TRUSTS 

band  in  this  case  was  capable  of  everything  required  by  the  general 
definition,  and  that  he  was  in  fact  a  competent  trustee  for  his  chil- 
dren under  the  same  deed.  Then  why  not  for  his  wife?  In  equity  he 
has  been  frequently  held  to  be  a  trustee  for  his  wife,  and  prior  to 
any  recent  statutes  regulating  married  women's  property,  in  all  cases 
where  real  estate  was  conveyed  direct  to  the  wife  during  coverture, 
for  her  sole  and  separate  use,  exclusive  of  her  husband,  he  was  in 
equity  deemed  a  trustee  for  the  wife,  and  as  such  held  the  legal  title. 
2  Story,  Eq.  Jur.  §  1380;  1  Bish.  Mar.  Wom.  §  800;  Porter  v.  Bank 
of  Rutland,  19  Vt.  410;  Bennet  v.  Davis,  2  P.  Wms.  316;  Conway 
V.  Hale,  4  Playw.  (Tenn.)  1,  9  Am.  Dec.  748;  Walker  v.  Walker's  Ex'r, 
9  Wall.  743,  19  L.  Ed.  814.  And  where  an  estate  was  given  to,  or  en- 
gaged to  be  held  by,  a  husband,  for  the  use  of  his  wife,  the  husband 
was  thereby  constituted  a  trustee  for  the  separate  use  of  the  wife. 
Darley  v.  Darley,  3  Atk.  398;  McLean  v.  Longlands,  5  Ves.  71 ;  Rich 
v.  Cockell,  9  Ves.  369 ;  Walter  v.  Hodge,  2  Swanst.  92 ;  2  Story,  Eq. 
Jur.  §  1372. 

While  a  court  of  equity,  perhaps,  would  never  have  appointed  Mr. 
Fraleigh  to  be  trustee  of  the  trust  created  by  him  for  his  wife  and 
children,  and  would  probably  have  removed  him  from  the  position, 
upon  proper  application,  after  he  was  appointed,  yet  there  is  no  abso- 
lute rule  of  law  rendering  him  incompetent  to  act  in  that  capacity,  if 
appointed  by  authority  of  the  instrument  creating  the  trust,  or  in  any 
other  legal  manner.  1  Perry,  Trusts,  §  59;  1  Lewin,  Trusts,  *41. 
Neither  did  the  appointment  of  Mr.  Fraleigh,  and  his  acceptance  there- 
of, revoke  the  trust  deed.  On  the  contrary,  his  acceptance  bound  him 
to  execute  the  trust  according  to  its  terms ;  and  he  was  invested  with 
the  same  power,  and  subject  to  the  same  responsibilities,  as  other  trus- 
tees, and  the  wife  was  entitled  to  the  same  protection  in  equity  as  any 
other  cestui  que  trust.  1  Bish.  Mar.  Wom.  §  801 ;  Walker  v.  Walker, 
9  Wall.  743,  19  L.  Ed.  814;  2  Story,  Eq.  Jur.  §  1380;  Tweedy  v.  Ur- 
quhart,  30  Ga.  446.  In  this  latter  case,  by  an  antenuptial  settlement 
between  Ephraim  Tweedy  and  Isabella  Hadley,  made  in  contemplation 
of  marriage,  certain  personal  property  was  conveyed  to  a  trustee  for 
the  sole  use  of  Isabella,  "separate  from  and  wholly  free  from  the  con- 
trol of  her  intended  husband,  or  any  future  husband."  with  a  provi- 
sion authorizing  Isabella  to  appoint  any  other  person  trustee  in  the 
place  of  the  one  named  in  the  deed,  should  he  die  or  resign.  The 
trustee  having  resigned,  Isabella,  then  the  wife  of  Tweedy,  appointed 
her  husband  trustee,  in  accordance  with  the  power  contained  in  the 
deed.  The  court  held  that  there  was  nothing  in  the  relation  of  hus- 
band and  wife,  nor  in  the  clause  of  the  settlement  in  quotation  above, 
depriving  the  wife  of  the  right  to  appoint  her  husband  trustee,  under 
the  power  reserved  in  the  settlement,  and  that  his  appointment  was 
valid. 


CREATION    OF    EXPKESS   TRUSTS  255 

3.  At  common  law  a  married  woman  could,  without  the  concurrence 
of  her  husband,  execute  a  power,  whether  the  power  was  given  to 
her  while  sole  or  married.  4  Kent,  Conim.  *324 ;  Gridley  v.  Wynant, 
23  How.  500,  16  L.  Ed.  411;  Gridley  v.  Westbrook,  23  How.  503, 
16  L.  Ed.  412;  Armstrong  v.  Kerns,  61  Md.  364;  Thompson  v.  Perry, 
2  Hill,  Eq.  (S.  C.)  204,  29  Am.  Dec.  68 ;  Barnes  v.  Irwin,  2  Ball.  199, 
1  L.  Ed.  348.  And  she  could,  in  such  cases,  execute  the  power  in 
favor  of  her  husband.  Wood  v.  Wood,  L.  R.  10  Eq.  Cas.  220;  Tay- 
lor V.  Eatman,  92  N,  C.  601 ;  3  Kerr,  Real  Prop.  §§  1857,  1859;  Rich- 
ards V.  Chambers,  10  Ves.  580.  As  the  appointment  of  a  trustee  in 
this  case  was  the  exercise  of  a  mere  power,  and  at  common  law  a 
married  woman  could  exercise  such  power  without  the  assent  of  her 
husband,  it  only  remains  to  be  seen  whether  this  rule  of  the  common 
law,  had  been  changed  by  any  statute  of  this  state  at  the  time  of  the 
execution  of  the  power  in  question  in  this  case.  We  are  very  clearly 
of  the  opinion  that  it  had  not.  The  statutes  in  force  at  that  time 
requiring  the  joinder  of  the  husband,  and  a  separate  acknowledgment 
of  the  wife,  were  applicable  only  to  transfers  and  conveyances  of  the 
wife's  property.  Act  Feb.  4,  1835,  §  1 ;  Act  March  6,  1845,  §  4.  The 
designation  of  a  person  to  act  as  trustee,  and  hold  the  legal  title  to 
property  of  which  she  was  a  beneficiary,  was  not  a  transfer  by  her 
of  the  trust  property,  or  any  interest  therein.  Her  appointment  con- 
ferred no  title  upon  her  husband  in  the  trust  property.  His  title,  pow- 
ers, and  duties  were  derived  from,  and  determined  by,  the  original 
trust  deed,  not  from  her  appointment.  Her  power  to  appoint  pos- 
sessed none  of  the  elements  of  an  estate.  Norfleet  v.  Hawkins,  93 
N.  C.  392 ;  4  Kent,  Comm.  337 ;  Patterson  v.  Lawrence,  83  Ga.  703, 
10  S.  E.  355,  7  L.  R.  A.  143;  Schley  v.  McCeney,  36  Md.  266;  3 
Kerr,  Real  Prop.  §§  1850,  1851;  Cranstone  v.  Crane,  97  Mass.  459, 
93  Am.  Dec.  106. 

4.  It  is  also  insisted  that  the  substituted  trustee  acquired  no  title 
to  the  property  which  he  could  convey  without  a  deed  from  the  re- 
tiring trustee.  The  trust  deed  authorized  the  named  trustee  to  resign. 
He  did  resign,  and  thereupon  ceased  to  be  trustee.  Mrs.  Fraleigh  was 
authorized  to  choose  and  appoint  another.  She  did  so,  and  thereupon 
E.  M.  Fraleigh,  by  the  express  language  of  the  trust  deed,  took  the 
trusteeship,  subject  to  the  trust  in  the  deed  limited.  Even  if  the  trust 
property  was  not,  by  the  language  of  the  trust  deed,  effectually  trans- 
ferred to  the  new  trustee  upon  his  appointment,  without  a  formal  con- 
veyance from  Mr.  Love,  yet  by  his  appointment  Mr.  Fraleigh  became 
the  rightful  trustee,  and  as  such  could  unquestionably  have  maintained 
actions  against  Mr.  Love  for  conveyances  and  possession  of  the  trust 
property.  Noble  v.  Meymott,  14  Beav.  471 ;  2  Lewin,  Trusts,  *650. 
I^the  language  of  the  trust  deed  was  insufiicient  to  vest  title  to  the 

jti-ust  property  in  Mr.  Fraleigh,  but  was  sufficient  to  constitute  him  a 
trustee  upon  Mrs,  Fraleigh's  appointment,  then  the  legal  title  remained 


256  EQUITABLE   ESTATES — USES    AND    TRUSTS 

in  Mr.  Love,  as  a  naked  trust;  and  upon  the  execution  of  the  power 
of  sale  contained  in  the  trust  deed  by  the  new  trustee,  the  title  passed 
to  the  purchaser  (at  least,  so  far  as  the  cestuis  que  trustent  were  con- 
cerned), by  force  of  the  terms  of  the  trust  deed  granting  power  to 
sell,  and  by  the  deed  of  the  new  trustee  executed  under  that  power. 
Bank  v.  Eldridge,  115  Mass.  424. 

The  decree  of  the  circuit  court,  except  the  paragraph  appointing  D. 
McMillan  as  trustee,  is  reversed,  with  directions  to  dismiss  the  bill 
and  amended  bill,  as  against  the  appellant.  In  other  respects  the  de- 
cree is  affirmed. 


CITY  OF  OWATONNA  v.  ROSEBROCK. 

(Supreme  Court  of  Miunesota,  1903.    88  Minn.  318,  92  N.  W.  1122.) 

Appeal  from  district  court,  Steele  county;  Thomas  S.  Buckham, 
Judge. 

Action  by  city  of  Owatonna  against  Carl  J.  H.  Rosebrock  and  oth- 
ers.   From  a  judgment  for  defendants,  plaintiff  appeals.    Reversed. 

Lewis,  J.  On  January  3,  1899,  Herman  Heinrich  Rosebrock,  a 
resident  of  Owatonna,  died,  leaving  a  will,  the  pertinent  part  of  which 
reads  as  follows:  "I  give  and  bequeath  the  sum  of  five  thousand  dol- 
lars ($5,000)  to  Carl  J.  H.  Rosebrock  (my  son)  and  to  Nicholas  J. 
Schaf er,  in  trust  for  the  following  purposes,  to  wit :  It  is  my  desire  and 
purpose  to  aid  in  the  maintaining  of  a  kindergarten  in  the  city  of  Owa- 
tonna, Minnesota,  and  that  the  said  sum  of  five  thousand  dollars  ($5,- 
000)  shall  constitute  an  endowment  in  perpetuity  for  that  purpose. 
Said  sum  is  therefore  given  to  said  persons  in  trust  to  invest,  reinvest, 
and  loan  the  same  from  time  to  time  in  such  manner  as  my  said  trus- 
tees or  their  successors  may  deem  best,  with  full  power  to  change  any 
investment  thus  made,  and  to  pay  over  the  income,  less  the  expense  of 
administering  the  trust,  to  be  used  as  to  them  shall  seem  most  expedient 
for  the  conducting  of  a  kindergarten  in  the  city  of  Owatonna,  Minne- 
sota :  provided,  that  whenever  the  city  of  Owatonna  aforesaid,  or  any 
officer  or  officers  thereof,  shall  be  legally  authorized  to  receive  and  ad- 
minister such  a  trust  as  hereby  created  (in  perpetuity),  that  the  trust 
hereby  created  shall  be  transferred  to  said  city  of  Owatonna,  or  the 
proper  officer  or  officers  thereof,  who  shall  be  charged  with  the  man- 
agement of  said  trust  in  the  same  manner  as  the  said  trustees  hereby 
appointed  by  me ;  and  said  trustees  shall,  upon  turning  over  the  funds 
with  which  they  are  charged,  be  relieved  from  further  responsibility 
with  relation  to  said  trust." 

The  will  was  duly  allowed  and  probated,  and  the  son,  Carl  J.  H. 
Rosebrock,  duly  qualified  as  executor.  The  estate  was  administered, 
and  the  sum  of  $8,629.20  in  excess  of  the  amount  required  to  pay  all 
bequests  remained  in  the  hands  of  the  executor,  and  the  probate  court 
made  the  following  decree:  "To  Carl  J.  H.  Rosebrock  and  Nicholas  J. 


CREATION    OF    EXPRESS   TRUSTS  257 

Schafer,  in  trust,  the  sum  of  five  thousand  ($5,000)  dollars,  said  sum 
to  constitute  an  endowment  in  perpetuity  to  aid  in  maintaining  a  kin- 
dergarten in  the  city  of  Owatonna,  Minnesota,  and  said  sum  to  he  con- 
trolled and  managed  according  to  the  provisions  of  item  8  of  said  last 
will  and  testament,  reference  being  made  thereto."  The  money  re- 
mained in  the  hands  of  the  executor,  and  nothing  was  done  towards 
carrying  out  the  terms  of  the  trust.  On  July  16,  1901,  the  common 
council  of  the  city  of  Owatonna  passed  a  resolution  accepting  the  trust 
for  the  purpose  for  which  it  was  made,  and  appointed  the  mayor,  city 
recorder,  and  city  treasurer,  and  their  successors  in  office,  to  receive 
and  receipt  for  the  bequest,  which,  when  received,  should  be  paid  into 
the  city  treasury ;  and  that  such  officers  and  their  successors  should  in- 
vest and  loan  the  money  and  use  the  income  derived  therefrom  as  in 
the  will  provided,  all  of  which  should  be  done  under  the  direction  of 
the  city  council,  the  proceeds  thereof  to  be  known  as  the  "Rosebrock 
Kindergarten  Fund."  Thereafter  the  officers  referred  to  demanded 
of  the  trustees  payment  of  the  money,  together  with  interest  and  profits 
accrued  thereon,  and,  the  same  having  been  refused,  this  action  was 
brought  to  recover  the  amount. 

The  trial  court  found  the  facts  as  above  outlined,  but  held  as  a  con- 
clusion of  law  that  plaintiff  was  not  the  beneficiary  of  the  trust  created 
by  the  will,  and  not  entitled  to  the  fund  in  controversy.  The  respond- 
ents seek  to  sustain  the  conclusion  of  the  court  upon  the  following 
grounds:  (1)  That  the  provision  in  the  will  which  provides  for  the 
transfer  of  the  trust  to  the  city  of  Owatonna  at  such  time  as  it  shall 
have  acquired  authority  to  administer  it  is  not  mandatory,  but  directory 
only.  (2)  That  the  city  of  Owatonna  is  not  authorized  by  law  to  receive 
and  administer  such  a  trust,  the  beneficiary  being  uncertain.  (3)  That 
the  cause  was  tried  and  submitted  to  the  trial  court  by  appellant  upon 
the  theory  that  the  city  was  entitled  to  recover  simply  upon  ttte  ground 
that  it  was  the  beneficiary,  and  that  it  should  not  be  permitted  in  this 
court  to  change  its  position,  and  recover  upon  the  theory  that  it  is  in 
fact  the  trustee. 

1.  There  is  no  reasonable  ground  for  a  division  of  opinion  upon  the 
first  point  mentioned.  It  is  clearly  expressed  that  the  individual  trus- 
tees were  to  be  considered  temporary  only,  and  should  surrender  their 
trust  to  the  city  of  Owatonna  as  soon  as  that  city  should  be  legally  au- 
thorized to  receive  and  administer  it.  Subdivision  6,  §  4284,  Gen.  St. 
1894,  was  in  existence  at  the  time  of  the  execution  of  the  will,  but  the 
purposes  for  which  cities  were  authorized  to  receive  bequests  in  trust 
did  not  include  the  one  specified  in  the  will,  and  an  amendment  to  that 
effect  was  evidently  anticipated  by  the  testator.  Subsequent  to  the  pro- 
bating of  the  will,  chapter  95,  Laws  1901,  was  enacted,  which  amended 
subdivision  6  by  adding  the  words :  "Or  for  the  purpose  of  establish- 
ing and  maintaining  a  kindergarten,  or  other  school  or  institution  of 
learning."  By  this  amendment  the  city  of  Owatonna  became  legally 
Bued.Cas.Real  Prop. — 17 


258  EQUITABLE   ESTATES — USES   AND    TRUSTS 

authorized  to  receive  and  administer  the  trust,  and  it  was  the  intention 
of  the  testator  that  upon  the  happening  of  that  event  the  individual 
primary  trustees  should  surrender  the  fund.  The  testator  undoubtedly 
preferred  that  the  control  of  the  fund  and  the  expenditure  of  the  in- 
come for  the  purpose  mentioned  should  be  in  the  city  government  rath- 
er than  private  persons.  He  may  have  contemplated  that  some  con- 
troversy would  grow  out  of  the  administration  of  the  trust, — that  its 
legality  might  be  questioned, — and  therefore  preferred  that  the  money 
should  be  in  the  hands  of  city  authorities,  where  public  policy  and  pub- 
lic spirit  would  tend  to  insure  its  safety  and  proper  application  to  the 
destined  purpose.  Whatever  may  have  been  the  reasons  of  the  testa- 
tor, it  is  only  necessary  to  inquire  for  the  purpose  of  discovering  his 
actual  intention,  and  there  is  no  doubt  of  the  purpose  in  this  case. 

2.  Subdivision  6,  as  amended,  confers  upon  cities  and  villages  the 
authority  to  receive  such  benefits  and  devises,  and  to  invest  the  same, 
for  the  purpose  of  establishing  or  maintaining  a  kindergarten ;  and 
the  district  court  of  the  state  is  clothed  with  the  power  to  enforce  such 
trusts.  The  city  is  not  the  beneficiary ;  it  is  the  trustee,  and  as  such 
compelled  to  expend  the  income  as  directed  by  the  will.  In  Shanahan 
V.  Kelly  (filed  January  9,  1903)  88  Minn.  202,  92  N.  W.  948,  the  law 
upon  the  subject  of  trusts  was  reviewed,  and  it  was  held  that  all  trusts, 
including  charitable  trusts  in  personal  property,  are  abolished,  except 
as  provided  in  chapter  43,  Gen.  St.  1894;  and  that  all  trusts,  with  the 
possible  exception  of  those  authorized  by  subdivision  6  of  section  11, 
in  order  to  be  valid,  must  be  definite  and  certain  as  to  the  beneficiary, 
--citing  Lane  v.  Eaton,  69  Minn.  141,  71  N.  W.  1031,  38  L.  R.  A.  669, 
65  Am.  St.  Rep.  559.  But  the  beneficiary  is  not  uncertain  because  the 
testator  did  not  cause  the  fund  to  be  applied  to  some  particular  kinder- 
garten, or  because  at  that  time  no  kindergarten  had  been  established 
within  the  city.  It  is  the  intent  of  the  statute  that  a  city  may  receive 
such  a  fund  in  trust,  but  that  the  manner  of  its  application  rests  in  the 
discretion  of  the  city  authorities.  If  the  income  is  applied  to  the  ob- 
ject expressed,  it  is  immaterial  whether  the  city  acts  independently  or 
in  conjunction  with  private  persons  in  establishing  or  maintaining  the 
school.  And  it  is  unreasonable  to  assume  that  the  testator  intended  to 
limit  the  application  of  the  fund  merely  to  the  aiding  or  assisting  in 
maintaining  a  kindergarten,  or  that  he  contemplated  that  the  fund 
could  not  be  used  at  all  unless  there  was  at  the  time  in  fact  a  kinder- 
garten of  some  kind  already  established.  The  purpose  was  to  secure 
teaching  by  the  kindergarten  method,  and  the  income  of  the  fund  to  be 
applied  so  far  as  it  would  go,  independently,  if  sufficient,  or,  if  not, 
then  in  connection  with  other  funds. 

As  we  understand  the  position  of  respondent,  he  does  not  attack 
the  validity  of  this  trust,  but  assumes  that  under  the  provisions  of  the 
will  he  himself  was  the  party  authorized  to  administer  it.  But  if  the  city 
could  not  be  compelled  to  administer  the  trust  because  of  an  uncertain 
and  indefinite  beneficiary,  then,  for  the  same  reasons,  respondent  him- 


CREATION    or    EXPRESS    TRUSTS  259 

self  could  not  be  compelled  to  administer  it.  It  is  unnecessary  at  this 
time  to  decide  who  would  be  the  proper  party  to  compel  the  application 
of  the  income  for  the  purpose  specified  should  the  city  show  a  disposi- 
tion to  misapply  or  squander  the  fund.  There  will  be  time  enough  to 
decide  that  question  when  it  is  definitely  before  us.  The  proviso  attach- 
ed to  section  2484  in  reference  to  perpetuities  has  no  application  to  be- 
quests of  this  character  to  a  municipality,  they  being  expressly  author- 
ized. 

3.  It  would  seem  from  the  statements  made  in  respondent's  brief, 
and  from  certain  language  found  in  the  memorandum,  that  the  trial 
court  assumed  this  action  was  brought  upon  the  theory  that  the  city 
was  in  fact  the  beneficiary,  and  not  the  trustee.  It  does  not  appear 
clearly  from  the  record  that  any  change  of  positions  was  taken  by  coun- 
sel for  appellant  during  the  progress  of  the  trial,  or  that  those  now 
pressed  before  this  court  were  not  presented,  or  abandoned,  at  the  trial 
below.  The  facts  are  fully  stated  in  the  complaint,  and  the  relief  de- 
manded must  be  granted  if  the  statute  and  the  will  bear  the  interpreta- 
tion we  have  given  them.  If  the  appellant  city  is  in  fact  the  trustee, 
and  has  been  authorized  by~the  statute  to  receive  and  administer  the 
trust  fund,  and  respondent  has.  such  fund  in  his  possession,  unused,  the 
only  thing  to  do  in  order  to  transfer  the  trusteeship  from  the  one  to  the 
other  is  to  transfer  the  fund  itself.  No  finding  of  the  court  was  neces- 
sary to  declare  the  city  the  trustee,  for  the  law  has  made  it  such,  and, 
although  the  prayer  for  relief  is  limited  to  a  demand  for  an  accounting 
and  paying  over  of  the  amount  of  money  in  the  hands  of  respondent, 
such  accounting  and  paying  over  is  all  that  in  fact  remains  to  be  done. 

Judgment  reversed,  and  cause  remanded,  with  directions  to  the  trial 
court  to  amend  its  conclusions  of  law  so  as  to  direct  judgment  to  the 
efifect  that  respondent  turn  over  the  trust  fund  to  the  city  of  Owatonna, 
to  be  held  by  it  in  trust  for  the  purpose  stated  in  the  will. 


LAWRENCE  v.  LAWRENCE. 

(Supreme  Court  of  Illinois,  1899.    181  111.  248,  54  N.  E.  918.) 

Error  to  circuit  court,  Logan  county ;    C.  Epler,  Judge. 
3ill  by  John  T.  and  Frances  Lawrence  against  Jay  Lawrence  and 
others  to  cancel  a  trust  deed  and  expunge  it  from  record.    There  was 
a  decree  in  favor  of  complainants,  and  defendants  bring  error.     Re- 
versed. 

On  the  12th  day  of  August,  1868,  the  defendants  in  error,  who 
are  husband  and  wife,  as  parties  of  the  first  part  and  grantors,  and 
one  Eliza  A.  Lawrence,  as  party  of  the  second  part  and  grantee,  ex- 
ecuted a  certain  trust  deed  and  acknowledged  the  same  in  compliance 
with  the  statute  then  in  force  with  reference  to  the  valid  execution 
of  instruments  for  the  conveyance  of  real  estate.     By  said  deed  said 


260  EQUITABLE   ESTATES — USES    AND   TRUSTS 

defendants  in  error  conveyed  certain  lands  in  Logan  county  to  the 
said  Eliza  A.  Lawrence,  as  trustee,  to  "hold  the  legal  estate  or  title 
in  the  said  premises  to  the  sole  and  separate  use  and  benefit  of  Frances 
Lawrence,  wife  of  the  said  John  T.  Lawrence,  for  and  during  the  nat- 
ural life  of  the  said  Frances  Lawrence,  with  full  and  absolute  right 
to  the  said  Frances  Lawrence,  during  her  lifetime,  to  enjoy  the  use, 
rents,  issues,  and  profits  thereof,  and  upon  her  decease  to  hold  the 
same  to  the  sole  and  separate  use  and  benefit  of  the  said  John  T. 
Lawrence  for  and  during  his  natural  life,  with  full  power  to  the  said 
John  T.  Lawrence,  during  his  lifetime,  to  enjoy  the  rents,  issues,  and 
profits  thereof,  provided  he  shall  survive  his  said  wife,  but,  if  he  shall 
not  survive  his  said  wife,  then  in  trust  upon  the  decease  of  the  said 
Frances  Lawrence  to  reconvey  said  premises,  by  a  good  and  sufficient 
conveyance,  to  the  legal  heirs  of  him,  the  said  John  T.  ^Lawrence." 
The  deed  also  contained  the  following  provision :  "And  it  is  further 
provided  that  in  case  of  the  decease  of  the  said  party  of  the  second 
part,  or  her  legal  incapacity,  before  the  full  execution,  discharge,  and 
performance  of,  all  and  singular,  the  trusts  in  and  by  this  deed  cre- 
ated and  declared,  then  the  trust  herein  created  shall  be  executed,  dis- 
charged, or  performed  by  the  court  of  chancery  having  jurisdiction 
within  and  for  the  county  of  Logan;  and  upon  the  happening  of 
either  of  the  contingencies  last  aforesaid  the  estate  granted  and  con- 
veyed in  and  by  this  deed  shall  vest  in  such  court,  subject  to,  all  and 
singular,  the  trusts  and  confidences  in  this  deed  created  and  declared, 
and  said  court  shall  exercise  the  same  powers,  and  perform,  all  and 
singular,  the  trusts  that  may  remain  unexecuted,  and  perform  with 
the  same  legal  effect  as  the  said  party  of  the  second  part  might  or 
could  were  he  capable  of  performing  the  same  in  such  manner  as 
said  court  may  order  and  decree." 

On  the  15th  day  of  August,  1896,  the  defendants  in  error  exhibited 
their  bill  in  chancery  in  the  circuit  court  of  Logan  county,  praying 
for  a  decree  declaring  the  said  deed  to  be  null  and  void,  and  can- 
celing the  same  and  expunging  it  from  the  record.  The  bill  alleged  the 
said  Eliza  A.  Lawrence  had  departed  this  life;  that  the  complainants 
were  in  the  possession  of  the  said  premises  when  the  said  deed  was 
executed,  and  have  ever  since  remained  in  possession  thereof;  that 
the  defendants  to  the  bill  (plaintiffs  in  error)  are  the  children  of 
the  said  defendants  in  error.  The  further  allegations  of  the  bill  are 
as  follows :  "Orators  further  represent  that  said  trust  deed  is  void 
because — First,  the  same  was  made  without  consideration  for  the  exe- 
cution thereof;  second,  because  the  said  deed  contained  no  provision 
by  which  the  same  might  be  canceled  at  the  election  of  the  grantors; 
third,  that  at  the  time  said  deed  was  executed  they  did  not  know  that 
said  deed  did  not  contain  a  provision  whereby  the  said  deed  might  be 
canceled ;  fourth,  that  neither  of  orators  comprehended  the  legal  ef- 
fect of  said  deed  at  the  time  of  the  execution  thereof."     The  adult 


CREATION    OF    EXPRESS   TRUSTS  2G1 

defendants  suffered  default.  The  minors  answered  by  their  guardian 
ad  litem,  submitting  their  rights  to  the  consideration  of  the  court,  and 
demanding  strict  proof  of  the  bill.  T^ie  cause  was  heard  on  the  bill, 
answers,  proof  taken  before  the  master,  and  proofs  heard  in  open 
court,  and  decree  entered  granting  the  relief  prayed  in  the  bill.  The 
defendants  to  the  bill  have  prosecuted  this  writ  of  error  to  reverse 
the  decree. 

BoGGS,  J,  (after  stating  the  facts).  The  estate  of  a  trustee  in  the 
real  estate  which  is  the  subject-matter  of  the  trust  is  commensurate 
with  the  powers  conferred  by  the  trust,  and  the  purposes  to  be  effected 
by  it.  The  trustee  acquires  whatever  estate  (even  to  a  fee  simple)  is 
needed  to  enable  him  to  accomplish  the  purposes  of  the  trust.  Society 
v.  England,  106  111.  125 ;  West  v.  Fitz,  109  111.  425 ;  27  Am.  &  Eng. 
Enc.  Law,  110-113,  117.  When  the  trustee  is  directed  and  empowered 
to  convey  the  land  to  the  objects  of  the  settlor's  bounty,  the  legal  estate 
necessarily  vests  in  the  trustee.  If  a  trustee  is  required  to  grant  a 
fee,  the  fee  must  be  conferred  upon  him.  Kirkland  v.  Cox,  94  111. 
400;  Society  v.  England,  supra.  Where,  as  here,  the  trustee  is  re- 
quired to  convey  the  title  to  the  beneficiaries  on  the  happening  of 
a  certain  event,  the  trust  is  not  a  passive  or  dry  trust,  and  the  statute 
of  uses  does  not  operate  to  vest  the  title  in  the  usee.  Kirkland  v.  Cox, 
supra ;  Society  v.  England,  supra.  The  legal  title  to  the  premises 
here  involved  rested  in  the  trustee.  Upon  her  death  the  title  did  not 
remain  in  abeyance.  Courts  of  equity  may  be  vested  with  the  power 
to  appoint  a  successor  to  a  trustee  in  whom  title  to  lands  may  rest, 
but  such  title  cannot  descend  to  and  vest  in  the  courts  of  equity.  The 
title  held  by  the  trustee  in  this  instance  upon  her  death  passed  to  her 
legal  heirs,  subject  to  the  trust.  27  Am.  &  Eng.  Enc.  Law,  92.  Such 
heirs  were  necessary  parties  to  any  proceeding  instituted  far  the  pur- 
pose of  devesting  them  of  such  title.    Skiles  v.  Switzer,  11  111.  533. 

The  allegations  of  the  bill  are  insufficient  to  justify  a  decree  vacat- 
ing'the  deed.  The  trust  was  a  voluntary  settlement  for  the  benefit 
of  the  settlors  during  their  natural  lives  with  remainder  in  fee  to  and 
for  the  benefit  of  their  heirs.  It  was  perfectly  created,  so  that  noth- 
ing remained  to  be  done  by  the  settlors  to  give  it  effect,  and  it  may 
be  enforced  without  regard  to  the  presence  Or  absence  of  any  further 
consideration.     Massey  v.  Huntington,  118  111.  80,  7  N.  E.  269. 

The  bill  alleges  that  the  grantors  did  not  know  the  trust  deed  did 
not  contain  a  revoking  clause.  But  there  is  no  averment  that  they 
desired  or  expected  such  a  clause  to  be  inserted,  or  that  accident,  mis- 
take, or  fraud  in  any  way  intervened.  It  is  not  indispensable  to  a 
voluntary  settlement  that  it  should  contain  a  power  of  revocation. 
"There  is  no  such  rule  that  the  want  of  a  power  of  revocation  in  a 
voluntary  settlement,  or  the  want  of  advice  as  to  the  insertion  of  such 
a  power,  will  afford  ground  in  equity  for  the  donor  to  set  aside  such 
a  settlement,  but  that  the  same  is  a  circumstance,  and  a  circumstance 


262  EQUITABLE   ESTATES — USES    AND    TRUSTS  * 

merely,  to  be  taken  into  account  in  determining  upon  the  validity  of 
the  settlement,  and  of  more  or  less  weight  according  to  the  facts  of 
each  particular  case."  Finucan  v.  Kendig,  109  111.  198;  Patterson 
V.  Johnson,  113  111.  559. 

The  allegation  that  the  grantors  did  not  comprehend  the  legal  effect 
of  the  instrument  furnished  no  reason  for  vacating  it.  The  bill  does 
not  allege  that  the  legal  effect  was  dift'erent  from  what  it  was  intended 
it  should  be,  or  that  the  grantors  understood  it  would  have  any  differ- 
ent effect  from  that  which  the  law  would  give  it.  There  is  no  aver- 
ment of  mistake,  misapprehension,  or  misunderstanding  as  to  the  pur- 
port and  eff'ect  of  the  deed.  The  court,  however,  found  the_deed_Jiad_ 
not  been  deliyexed.  The  decree  was  entered  upon  proofs  taken  and  re- 
ported by  the  master,  and  proofs  heard  in  open  court.  There  is  no 
certificate  of  evidence;  hence,  we  cannot  know  what  testimony  was 
produced  orally.  In  such  state  of  case,  we  must  assume  the  findings 
of  the  court  were  supported  by  adequate  proof.  Waiving  the  applica- 
tion of  the  rule  that  the  allegations  of  a  bill  and  the  proof  must  cor- 
respond, and  that  a  party  is  not  entitled  to  relief,  though  the  evidence 
may  warrant  it,  unless  there  are  averments  in  the  bill  to  which  the 
evidence  may  apply,  we  are  of  opinion  the  decree  cannot  be  supported 
on  the  ground  that  there  was  no  delivery  of  the  deed.  When  a  decree 
m  chancery  granting  affirmative  relief  is  brought  into  review  on  error 
or  appeal,  the  rule  is  that  the  decree  must  be  supported  by  testimony 
preserved  in  the  record,  or  by  the  facts  appearing  from  specific  find- 
ings of  fact  recited  in  the  decree.  Bank  v.  Baker,  161  111.  281,  43  N. 
E.  1074.  The  decree  recites  that  the  deed  was  prepared  by  an  attorney 
who  was  acting  on  behalf  of  the  trustee,  and  as  to  the  delivery  thereof 
the  facts  are  found  and  recited  as  follows :  "Said  attorney,  without 
explaining  the  contents  of  the  said  deed  or  the  legal  eff'ect  thereof, 
delivered  said  deed  to  complainant  John  T.  Lawrence,  who,  together 
with  his  wife,  Frances  Lawrence,  executed  and  acknowledged  the  same 
before  a  justice  of  the  peace;  and  after  said  deed  had  been  signed 
by  the  trustee,  Eliza  A.  Lawrence,  with  whom  both  of  said  complain- 
ants were  then  living,  complainant  left  said  deed  with  the  recorder  of 
Logan  county  to  be  recorded,  under  the  instructions  and  directions  of 
said  attorney."  The  law  presumes  much  more  in  favor  of  the  delivery 
of  deeds  in  case  of  voluntary  settlements  than  in  ordinary  cases  of 
bargain  and  sale.  Insurance  Co.  v.  Campbell,  95  111.  267,  35  Am.  Rep. 
166*;  Williams  v.  Williams,  148  111.  426,  36  N.  E.  104.  No_formal 
delivery  to  the  grantee  or  trustee  in  person  is  necessary.  The  inten- 
tion of  the  party  is  the  controlling  element.  Walker  v.  Walker,  42 
111.  311,  89  Am.  Dec.  445. 

Here  it  appears  from  the  findings  of  the  court  the  deed  was  pre- 
pared by  an  attorney  who  was  acting  for  the  trustee,  and  who,  after 
it  was  prepared  and  was  ready  to  be  executed,  handed  it  to  the  de- 
fendant in  error   lohn  T.  Lawrence;    that  said  defendants  in  error 


IMPLIED  TRUSTS  263 

then  executed  and  acknowledged  it;  that  it  was  then  signed  by  the 
trustee ;  and  that  the  defendant  in  error  John  T.  Lawrence,  by  the 
instruction  and  direction  of  the  attorney  of  the  said  trustee,  took  the 
deed  to  the  recorder  of  deeds,  and  left  it  with  him  to  be  recorded. 
The  deed  was  duly  spread  of  record  by  the  proper  recorder  of  deeds 
2  days  after  it  had  been  executed,  and  more  than  28  years  before 
the  bill  to  cancel  it  was  exhibited.  No  fact  is  recited  tending  to  show 
that  it  was  not  the  intention  of  the  grantors  to  deliver  the  deed,  and 
in  such  state  of  case  the  act  of  the  grantors  in  delivering  the  deed 
to  the  recorder  to  be  recorded,  in  obedience  to  the  directions  of  the 
trustee,  through  her  attorney,  was  equivalent  to  the  manual  delivery 
of  the  deed  to  the  trustee.  "Leaving  the  deed  to  be  recorded  will 
be  a  good  delivery,  if  done  with  the  knowledge  of  the  grantee,  and 
with  the  evident  or  expressed  intention  that  the  title  is  to  pass  to  the 
'grantee."  5  Am.  &  Eng.  Enc.  Law,  447;  Weber  v.  Christen,  121  111. 
91,  11  N.  E.  893,  2  Am.  St.  Rep.  68. 

The  decree  must  be  reversed,  and  the  cause  remanded.     Reversed 
and  remanded. 


III.  Implied  Trusts  « 
1.  Resulting  Trusts 


Mcdonough  v.  o'niel. 

(Supreme  Judicial  Court  of  Massacliusetts,  1873.     113  Mass.  92.) 

Gray,  C.  J.     The  decision  of  this  case  depends  upon  the  applica- 
tion to  the  evidence  of  well  settled  rules  of  equity  jurisprudence. 

Where  land  conveyed  by  one  person  to  another  is  paid  for  with  the 
money  of  a  third,  a  trust  results  to  the  latter,  which  is  not  within    \ 
the  statute  of  frauds.    It  is  sufficient  if  the  purchase  money  was  lent     1 
to  him  by  the  grantee,  provided  the  loan  is  clearly  proved.     And  the 
grantee's  admissions,  like  other  parol   evidence,   though   not  compe- 
tent in  direct  proof  of  the  trust,  are  yet  admissible  to  show  that  the 
purchase  money,  by  reason  of  such  loan  or  otherwise,  was  the  money 
of  the  alleged  cestui  que  trust.    Kendall  v.  Mann,  11  Allen,  15  ;  Blodg- 
ett  V.  Hildreth,  103  Mass,  484;    Jackson  v.   Stevens,   108  Mass.  94. 
In  equity,  a  conveyance  absolute  on  its  face  may  be  shown  by  parol 
evidence  to  have  been  intended   as   a  mortgage   only,   and   its  effect 
limited  accordingly.     Campbell  v.  Dearborn,   109  Mass.   130,   12  Am. 
Rep.  671.     The  findings  of  a  master  in  matters  of  fact  are  not  to     I 
be  reviewed  by  the  court,  unless  clearly  shown  to  be  erroneous.    Dean     * 
V.  Emerson,  102  Mass.  480.     And  in  equity,  as  at  law,  the  omission    = 
of  a  party  to  testify  in  control  or  explanation  of  testimony  given  by 

«  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  127-129. 


204  EQUITABLE   ESTATES — USES    AND    TRUSTS 

Others  in  his  presence  is  a  proper  subject  of  consideration.  Whit- 
ney V.  Bayley,  4  Allen,  173. 

It  appears  and  is  not  controverted  that  the  deed  was  made  by  God- 
frey to 'the  defendant,  whose  wife  was  the  testator's  sister;  that  the 
purchase  money  was  $3,000,  of  which  the  testator  furnished  $300 
of  his  own  money,  and  $200  borrowed  by  him  of  Mrs.  McGovern, 
upon  a  note  signed  by  himself  and  the  defendant;  the  defendant  fur- 
nished $600  of  his  own  money,  and  $400  borrowed  of  Dolan  upon 
the  defendant's  note;  and  for  the  remaining  $1,500  the  defendant 
gave  his  own  note,  secured  by  mortgage  on  the  premises,  to  Clem- 
ents, who  held  a  previous  mortgage  for  a  like  amount,  and  who  testi- 
fied that  before  the  purchase  the  defendant  came  to  see  if  that  mort- 
gage could  lie  on  the  property,  and  told  him  that  he  was  going  to 
buy  the  land  for  the  testator,  and  was  told  by  the  mortgagee  that  he 
must  give  a  new  mortgage,  as  he  afterwards  did,  in  discharge  of  the 
old  one.  The  will  recites  that  the  defendant  held  a  deed  of  certain 
real  estate  in  trust  for  the  testator's  benefit,  and  had  paid  certain  sums 
of  money  on  his  account,  and  directs  that  all  such  sums  of  money,  with 
interest,  should  be  paid  back  to  him,  and  he  should  then  convey  the 
property  in  fee  to  the  testator's  wife.  The  attorney  who  drew  the 
will  certifies  that  he  read  this  part  of  it  in  the  testator's  presence,  and 
before  its  execution,  to  the  defendant,  and  asked  him  if  it  was  right, 
and  he  said  it  was,  and  upon  being  asked  what  claims  he  had  against 
the  place,  answered  $600,  besides  $100  for  repairs  and  $44.08  for 
taxes,  and  that  he  had  received  from  the  testator  the  whole  amount 
with  interest  of  the  note  to  Dolan,  except  $80,  and  that  the  testator 
had  paid  the  note  to  Mrs.  McGovern.  The  other  material  testimony 
may  be  taken  as  stated  on  the  defendant's  brief,  namely,  that  the  de- 
fendant repeatedly  "admitted  that  he  bought  the  place  for  John  B. 
McDonough  and  that  he  meant  to  assist  or  help  him ;"  that  "the  de- 
fendant said  McDonough  wanted  him  to  buy  the  place  for  him,"  "that 
he  had  always  wanted  John  to  take  the  deed,  but  he  had  not  paid 
up;"  and  "that  he  was  ready  to  fix  up  the  place  when  McDonough 
was  ready  to  pay  up."  The  master  also  reports  that  the  defendant 
was  present  at  the  hearing  before  him,  but  did  not  offer  to  testify. 

From  this  evidence  the  master,  who  heard  all  the  witnesses,  was 
warranted  in  finding  as  matter  of  fact  that  the  money  paid  by  the 
defendant  for  the  land  was  lent  by  him  to  the  plaintiff  for  the  pur- 
pose, and  that  thus  the  whole  purchase  money  was  the  plaintiff's 
money.  Upon  examination  of  the  whole  evidence,  we  see  no  sufiicient 
cause  for  reversing  the  conclusion  of  the  master;  and  taking  the  facts 
as  found  by  him,  the  inference  of  law  follows  that  there  was  a  re- 
sulting trust  in  favor  of  the  testator,  and  that  there  must  be^_decre.e 
for  the  plaintiff. 


INCIDENTS    or    EQUITABLE    ESTATES  265 

IV.  Incidents  of  Equitable  Estates' 
1.  Merger 


NELLIS  V.  RICKARD.» 

(Supreme  Court  of  California,  1901.     133  Cal.  617,  66  Pac.  32,  85  Am.   St, 

Rep.  227.) 

Commissioners'  decision.  Department  2.  Appeal  from  superior 
court,  city  and  county  of  San  Francisco;    A.  A,  Sanderson,  Judge. 

Action  by  S.  C.  Nellis  against  K.  C.  Rickard  and  another.  From 
a  judgment  for  plaintiff,  and  from  an  order  denying  a  new  trial,  de- 
fendants appeal.    Reversed. 

Chipman,  C.  Action  to  quiet  title.  Plaintiff  had  judgment,  from 
which,  and  from  the  order  denying  motion  for  new  trial,  defend- 
ants appeal. 

Defendant  Mattie  S.  Rickard  claims  title  under  deed  of  trust  from 
her  father.  Dr.  Richard  H.  McDonald,  to  her,  June  27,  1891.  She 
was  at  the  time  the  wife  of  John  C,  Spencer,  and  had  four  children 
living,  and  they  are  still  living.  She  had  no  other  child.  These  chil- 
dren were  born,  respectively,  at  the  following  dates :  November  28,. 
1879,  October  10,  1881,  October  15,  1883,  March  15,  1885.  She  was 
divorced  from  Spencer,  and  married  her  co-defendant,  Kenneth  C. 
Rickard,  with  whom  she  is  now  living.  Dr.  McDonald  was  a  mem- 
ber of  his  daughter's  household  in  June,  1891.  Plaintiff  was  a  judg- 
ment creditor  of  McDonald,  and  claims  under  execution  sale  and 
sheriff's  deed  of  date  subsequent  to  1891.  The  deed  of  trust  is  between 
Dr.  McDonald,  party  of  the  first  part,  and  Mattie  S.  Spencer,  party 
of  the  second  part,  and  recites  that  Mrs.  Spencer  (now  Mrs.  Rick- 
ard) is  the  grantor's  daughter,  and  that  "in  consideration  of  the  affec- 
tion which  the  party  of  the  first  part  has  for  her  children,  and  the 
trust  reposed  in  her,  he  does  by  these  presents  give,  grant,  and  con- 
vey unto  the  party  of  the  second  part  [the  lands  in  controversy]  ; 
to  have  and  to  hold  all  and  singular  the  said  premises,  together  with 
the  appurtenances,  unto  the  said  party  of  the  second  part  in  trust  for 
the  uses  and  purposes  herein  set  forth  and  none  other,  to  wit,  to  pos- 
sess, control,  and  have  the  income  of  said  property  during  the  natural 
life  of  the  said  party  of  the  second  part,  and  upon  her  death  then  the 
net  income  of  said  property  shall  belong  to  her  children,  share  and 
share  alike,  except  in  case  of  the  death  of  any  such  child  or  chil- 
dren leaving  issue,  then  the  share  otherwise  going  to  such  child  or 
children  shall  go  to  the  issue  of  such  child  or  children  until  the  young- 

t  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  134. 
«  Rehearing  denied  September  10,  1901. 


266  EQUITABLE   ESTATES — USES    AND    TRUSTS 

est  child  of  the  party  of  the  second  part  arrives  at  the  age  of  25 
years ;  thereupon  the  said  property  shall  vest  in  fee  share  and  share 
alike  in  said  children,  and  the  issue  of  the  aforesaid  child  or  children 
if  any  there  be.  The  said  party  of  the  second  part  or  her  aforesaid 
successors  shall  have  no  power  to  alienate,  incumber,  or  create  a 
lien  on  said  property,  or  to  lease  the  same  for  a  term  to  exceed  five 
years,  and  the  income  of  said  property  shall  be  paid  monthly." 

To  rescue  the  deed  entirely  from  the  operation  of  the  statute  against 
perpetuities,  or,  if  this  cannot  be  done,  to  give  it  effect  to  some  extent, 
appellants  contend :  First.  That  the  deed  conveyed  the  legal  life  estate 
to  the  grantor's  daughter,  Mrs.  Spencer,  free  of  any  trust;  and,  if  a 
trust  was  created,  Mrs.  Spencer's  interest  is  severable  from  the  trust 
for  the  children,  and  would  not  be  aft'ected  by  any  invalidity  of  the 
latter  trust.  Second.  If  the  deed  created  a  trust  of  the  remainder  after 
the  life  estate,  it  was  for  the  benefit  only  of  children  living  at  the 
date  of  the  deed,  and  therefore  did  not  contravene  the  statute.  But, 
even  if  it  included  after-born  children,  it  may  be  construed  as  lim- 
iting its  benefits  to  children  in  being,  and  it  is  the  duty  of  the  court 
so  to  construe  the  deed  if  thereby  a  violation  of  the  statute  may  be 
prevented.  Third.  That  no  trust  was  created  for  the  children,  but  the 
title  vests  in  them  at  the  mother's  death,  subject  at  most  to  certain 
restrictions  on  their  mode  of  enjoyment  until  the  youngest  shall  have 
arrived  at  the  age  of  25  years.  Fourth.  If  the  deed  attempted  to  cre- 
ate a  trust  of  the  remainder  for  all  the  children  of  Mrs.  Spencer,  and 
such  trust  would  be  void,  still  the  gift  to  the  children  takes,  eft'ect  and 
will  be  upheld,  the  trust  being  disregarded ;  that  in  no  aspect  of  the 
deed  was  any  interest  or  reversion  left  in  McDonald,  or  acquired  un- 
der execution  sale  against  him. 

It  is  undoubtedly  true,  as  a  general  proposition,  that,  where  an  eq- 
uitable estate  and  a  legal  estate  meet  in  the  same  person,  the  former 
is  merged  in  the  latter,  if  the  two  estates  are  commensurate  and  co- 
extensive, and  if  the  merger  is  not  contrary  to  the  intention  of  the 
parties.  Lewin,  Trusts,  pp.  *14,  *665 ;  Perry,  Trusts,  §§  13,  347. 
A.nd,  ordinarily,  a  cestui  que  trust  should  not  be  appointed  trustee. 
But  the  authorities  hold  that  a  cestui  que  trust  is  not  absolutely  in- 
capacitated from  being  a  trustee,  "as  the  court  itself,  under  special  cir- 
cumstances, appoints  a  cestui  que  trust  a  trustee.  The  question  is 
one  merely  of  relative  fitness."  Lewin.  Trusts,  p.  *665  ;  Perry,  Trusts, 
§§  59,  297,  and  cases  cited ;  Tyler  v.  Mayre,  95  Cal.  160,  27  Pac.  160, 
30  Pac.   196,  where  a  trustee  was  also  a  beneficiary. 

Respondent  contends  that  there  could  be  no  merger  in  this  case, 
because  the  beneficiary  takes  no  interest  in  the  estate,  and  there  was 
no  estate  to  merge,  the  entire  legal  and  equitable  title  passing  by  the 
deed  to  the  trustee,  the  beneficiary  having  only  the  right  to  have  the 
trust  enforced.  In  re  Walkerly's  Estate,  108  Cal.  627,  41  Pac.  772, 
49  Am.  St.  Rep.  97.     It  is  not  necessary  to  decide  these  questions. 


INCIDENTS    OF    EQUITABLE    ESTATES  2G7 

We  think  a  trust  was  intended  to  be  created  and  was  created,  but  it 
is  not  a  single  trust  constituting  an  indivisible  scheme  for  the  dis- 
position of  the  grantor's  property,  and  incapable  of  being  considered 
by  its  several  parts.  The  deed  establishes:  (1)  A  trust  for  the  benefit 
of  Mrs.  Spencer,  by  which  she  was  to  have  the  incomes  of  the  prop- 
erty during  her  natural  life;  and  the  only  restraint  put  upon  her  re- 
lated to  the  disposition  of  the  corpus  of  the  estate.  There  was  no 
restriction  whatever  as  to  the  incomes,  all  of  which  she  was  to  enjoy 
during  her  natural  life.  As  there  was  here  no  restraint  on  alienation 
beyond  lives  in  being,  the  trust  as  to  her  did  not  contravene  the  stat- 
ute. (2)  A  further  trust  was  established  by  which  at  Mrs.  Spencer's 
death  her  children,  and  the  issue  of  such  children,  were  to  enjoy  the 
net  incomes  of  the  property  until  a  certain  period,  when  the  fee  was 
to  vest  in  the  survivors. 

As  to  this  latter  trust,  it  is  urged  by  respondent  that  the  alienation 
was  suspended  beyond  the  legal  period,  and  is  not  only  void,  but  that 
its  invalidity  taints  the  entire  instrument,  in  consequence  of  which 
the  whole  trust  must  be  held  void,  and  that  the  property  was  sub- 
ject to  execution  on  plaintiff's  judgment  against  the  grantor  of  the 
trust  deed.  If  it  be  true  that  the  trust  created  by  the  deed  is  of  such 
a  nature  as  to  make  it  indivisible,  and  incapable  of  being  carried  out, 
as  to  that  trust  which  is  clearly  legal,  because  of  the  alleged  inva- 
lidity of  the  other  trust,  and  if  the  other  trust  is  in  fact  illegal,  plain- 
tiff's contention  would  be  sound.  But,  as  we  think  the  trusts  are 
severable,  it  becomes  immaterial  whether  or  not  the  trust  as  to  the 
children  is  valid.  The  children  are  not  made  parties.  All  the  parties 
to  the  trust  are  living.  The  judgment  here  as  to  Mrs.  Spencer's  inter- 
est will  not  affect  the  rights  of  the  children  after  her  interest  ceases. 
We  need  not,  therefore,  determine  the  children's  rights,  in  the  event 
of  Mrs.  Spencer's  death,  should  they  or  any  of  them  outlive  her. 

In  Re  Hendy's  Estate,  118  Cal.  656,  50  Pac.  753,  the  testator  left 
a  bequest  of  $5,000  to  his  niece,  Mrs.  Green,  to  be  held  in  trust  by 
his  executors  for  her  benefit,  and  thejnterest  to  be  paid  her  monthly, 
and  at  her  death  "the  same  to  be  continued  to  her  two  children,  Har- 
rold  and  Mildred  Green,  until  they  are  each  twenty-five  years  of 
age,  when  the  five  thousand  dollars  shall  be  paid  to  them  share  and 
share  alike."  Mrs.  Green  petitioned  to  have  the  legacy  distributed  to 
her  absolutely,  on  the  assumption  that  the  trust  declared  was  void 
for  undue  suspension  of  the  power  of  alienation.  Civ.  Code,  §  715. 
It  was  held  that  the  will  did  not  create  a  single  trust,  but  established 
(1)  a  trust  for  the  benefit  of  Mrs.  Green,  and  (2)  a  trust  for  the  benefit 
(if  her  two  children.  And  it  was  said :  '"Harrold  and  Mildred  were 
in  being  at  the  creation  of  the  trust,  and  are  still  living,  and  in  their 
minorities.  Therefore  whatever  conclusion  may  be  reached  as  to  the 
validity  of  the  trust  for  the  children,  it  is, obvious  that  there  can  be 
•no  legal  objection  advanced  against  the  trust  to  Mrs.  Green.     *     *     * 


268  EQUITABLE   ESTATES — USES    AND    TRUSTS 

It  is  manifest,  therefore,  that  the  decree  awarding  Airs.  Green  five 
thousand  dollars  as  an  absolute  legac}^  must  be  reversed;  since,  the 
trust,  as  to  her,  being  valid,  and  distinct  from  that  on  behalf  of  the 
children,  the  utmost  she  would  be  entitled  to  receive  in  any  event 
would  be  the  income  from  the  fund  during  her  life.  The  future  dis- 
position of  the  principal  of  the  fund  would  concern  only  the  children 
and  the  residuary  legatees."  It  is  true  that  the  court  proceeded  to 
show  that  the  trust  to  the  children  also  was  valid,  and  it  is  hence 
urged  by  respondent  that  the  case  is  not  decisive  of  the  present  one. 
As  we  understand  the  decision,  however,  there  was  a  clear  and  dis- 
tinct expression  of  belief  that  the  invalidity  of  the  trust  to  the  chil- 
dren would  make  no  difference  in  the  conclusion  as  to  Mrs.  Green's 
rights.  And  the  court  disposed  of  the  other  aspect  of  the  case  be- 
cause the  matter  was  in  probate,  and  seemed  to  call  for  a  settlement 
of  the  children's  rights,  and  not  because  it  had  any  necessary  bear- 
ing on  the  trust  as  to  Mrs.  Green. 

We  are  unable  to  distinguish  between  that  case  and  the  present  one ; 
and,  besides,  we  are  satisfied  upon  authority  and  upon  reason  that  the 
trust  as  to  Mrs.  Spencer  should  be  upheld.  Mr.  Gray  says  in  'ms  Rule 
against  Perpetuities  (section  341) :  "When  the  settlor  or  testator  has 
himself  separated  the  contingencies,  there  is  no  difficulty  in  regarding 
the  gifts  separately,  and  upholding  one,  although  the  other  fails ;  and 
the  courts  naturally  and  properly  lean  to  construing  the  gifts  sepa- 
rately when  it  can  be  done."  It  was  stated  as  the  rule  in  Harrison 
V.  Harrison,  36  N.  Y.  543,  that  it  is  no  objection  that  the  limitations, 
as  well  those  which  are  good  as  the  one  alleged  to  be  bad,  are  em- 
braced in  a  single  trust.  Such  trust,  created  for  two  purposes,  one 
lawful  and  the  other  unlawful,  is~go63^r  the  lawful  purpose,  though 
void  as  to  the  unlawful  one.  Amory  v.  Lord,  9  N.  Y,  403,  was  re- 
ferred to  and  distinguished  because  in  that  case  "the  estate  in  the 
rents  and  profits,  etc.,  devised  for  the  benefit  of  the  children,  and  the 
remainder  in  fee  to  the  grandchildren,  were  so  mixed  up  with  and 
dependent  upon  the  illegal  and, void  one  [the  life  estate  in  the  surviv- 
ing husband  or  wife]  that  it  was  impossible  to  sustain  the  one  without 
giving  effect  to  the  other."  That  is  precisely  the  distinction  we  find 
in  the  numerous  cases  on  the  subject  where  there  is  apparent  conflict. 
If  the  several  trusts  are  not  so  interdependent  as  that  neither  one 
can  be  dealt  with  without  giving  effect  to  all  the  others,  the  court  will 
sort  out  the  good  from  the  bad,  and  give  effect  to  the  valid  trusts. 
It  was  said  by  the  court  in  Van  Schuyver  v.  Mulford,  59  N.  Y.  426, 
where  previous  similar  cases  were  re-examined,  that,  "if  the  estate  was 
vested  under  the  will  in  a  trustee  upon  several  independent  trusts, 
some  of  which  are  legal  while  others  are  in  contravention  of  the  stat- 
ute regulating  uses  and  trusts,  or  the  statutes  against  perpetuities,  the 
estate  of  the  trustee  wiU  be  upheld  to  the  extent  necessary  to  enable 
him  to  execute  the  valid  trusts,  and  will  only  be  void  as  to  the  illegal 


CHARITABLE    OR   PUBLIC   TRUSTS  269 

or  invalid  trusts."  The  rule  was  thus  expressed  in  Tiers  v.  Tiers, 
98  N.  Y.  568:  "The  rule  is  quite  well  settled  that  an  ulterior  limi- 
tation, though  invalid,  will  not  be  allowed  to  invalidate  the  primary 
dispositions  of  the  will,  but  will  be  cut  off  in  the  case  of  a  trust  which 
is  not  an  entirety,  as  well  as  in  the  case  of  a  limitation  of  a  legal 
estate."  That  this  is  the  generally  accepted  rule  we  think  there  is 
no  doubt. 

Looking  at  the  deed  before  us,  what  seems  to  us  to  be  intended  as 
the  primary  trust  is  the  trust  for  the  benefit  of  Mrs.  Spencer,  and  that 
the  ulterior  contingent  limitation  is  easily  separable  from  the  primary 
trust,  and  is  but  incidental,  its  purpose  being  to  provide  for  a  contin- 
gency which  may  never  arise,  since  Mrs.  Spencer  may  outlive  all  her 
children,  and  the  failure  of  the  provision  as  to  them  would  not  affect 
the  trust  as  to  her.    The  judgment  and  order  should  be  reversed. 

We  concur:    Haynes,  C. ;    Cooper,  C. 

Per  Curiam.  For  the  reasons  given  in  the  foregoing  opinion,  the 
judgment  and  order  are  reversed. 


V.  Charitable  or  Public  Trusts  » 
1.  Definition 


JACKSON  v.  PHILLIPS. 
(Supreme  Judicial  Court  of  Massachusetts,  1867.     14  Allen,  539.) 

Bill  in  equity  by  the  executor  of  the  will  of  Francis  Jackson,  of  Bos- 
ton, for  instructions  as  to  the  validity  and  effect  of  the  following  be- 
quests and  devises : 

"Article  4th.  I  give  and  bequeath  to  William  Lloyd  Garrison,  Wen- 
dell PhilHps,  Edmund  Ouincy,  Maria  W.  Chapman,  L.  Maria  Child, 
Edmund  Jackson,  William  I.  Bowditch,  Samuel  May,  Jr.,  and  Charles 
K.  Whipple,  their  successors  and  assigns,  ten  thousand  dollars ;  not  for 
their  own  use,  but  in  trust,  nevertheless,  for  them  to  use  and  expend 
at  their  discretion,  without  any  responsibility  to  any  one,  in  such  sums, 
at  such  times  and  such  places,  as  they  deem  best,  for  the  preparation 
and  circulation  of  books,  newspapers,  the  delivery  of  speeches,  lectures, 
and  such  other  means  as  in  their  judgment,  will  create  a  public  senti- 
ment that  will  put  an  end  to  negro  slavery  in  this  country ;  and  I  here- 
by constitute  them  a  board  of  trustees  for  that  purpose,  with  power  to 
fill  all  vacancies  that  may  occur  from  time  to  time  by  death  or  resigna- 
tion of  any  member  or  of  any  officer  of  said  board.  And  I  hereby  ap- 
point Wendell  Phillips  president,  Edmund  Jackson  treasurer,  and 
Charles  K.  Whipple    secretary,  of  said  board  of  trustees.     Other  be- 

8  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  135. 


270  EQUITABLE   ESTATES — USES    AND    TRUSTS 

quests,  hereinafter  made,  will  sooner  or  later  revert  to  this  board  of 
trustees.  My  desire  is  that  they  may  become  a  permanent  organiza- 
tion; and  I  hope  and  trust  that  they  will  receive  the  services  and 
sympathy,  the  donations  and  bequests,  of  the  friends  of  the  slave. 

"Article  5th.  I  give  and  bequeath  to  the  board  of  trustees  named  in 
the  fourth  article  of  this  will,  their  successors  and  assigns,  two  thou- 
sand dollars,  not  for  their  own  use,  but  in  trust,  nevertheless,  to  be  ex- 
pended by  them  at  their  discretion,  without  any  responsibility  to  any 
one,  for  the  benefit  of  fugitive  slaves  who  may  escape  from  the  slave- 
holding  states  of  this  infamous  Union  from  time  to  time. 

''Disregarding  the  self-evident  declaration  of  1776,  repeated  in  her 
own  constitution  of  1780,  that  'all  men  are  born  free  and  equal,'  Massa- 
chusetts has  since,  in  the  face  of  those  solemn  declarations,  deliberate- 
ly entered  into  a  conspiracy  with  other  states  to  aid  them  in  enslaving 
millions  of  innocent  persons.  I  have  long  labored  to  help  my  native 
state  out  of  her  deep  iniquity  and  her  barefaced  hypocrisy  in  this  mat- 
ter. I  now  enter  my  last  protest  against  her  inconsistency,  her  in- 
justice, and  her  cruelty,  towards  an  unoffending  people.  God  save  the 
fugitive  slaves  that  escape  to  her  borders,  whatever  may  become  of  the 
commonwealth  of  Massachusetts ! 

"Article  6th.  I  give  and  bequeath  to  Wendell  Phillips  of  said  Boston, 
Lucy  Stone,  formerly  of  Brookfield,  Mass.,  now  the  wife  of  Henry 
Blackwell  of  New  York,  and  Susan  B.  Anthony  of  Rochester,  N.  Y., 
their  successors  and  assigns,  five  thousand  dollars,  not  for  their  own 
use,  but  in  trust,  nevertheless,  to  be  expended  by  them,  without  any 
responsibility  to  any  one,  at  their  discretion,  in  such  sums,  at  such 
times,  and  in  such  places,  as  they  may  deem  fit,  to  secure  the  passage  of 
laws  granting  women,  whether  married  or  unmarried,  the  right  to 
vote ;  to  hold  ofiice ;  to  hold,  manage,  and  devise  property ;  and  all 
other  civil  rights  enjoyed  by  men;  and  for  the  preparation  and  circula- 
tion of  books,  the  delivery  of  lectures,  and  such  other  means  as  they 
may  judge  best;  and  I  hereby  constitute  them  a  board  of  trustees  for 
that  intent  and  purpose,  with  power  to  add  two  other  persons  to  said 
board  if  they  deem  it  expedient.  And  I  hereby  appoint  Wendell  Phil- 
lips president  and  treasurer,  and  Susan  B.  Anthony  secretary,  of  said 
board.  I  direct  the  treasurer  of  said  board  not  to  loan  any  part  of  said 
bequest,  but  to  invest,  and,  if  need  be,  sell  and  re-invest,  the  same  in 
bank  or  railroad  shares,  at  his  discretion.  I  further  authorize  and  re- 
quest said  board  of  trustees,  the  survivors  and  survivor  of  them,  to  fill 
any  and  all  vacancies  that  may  occur  from  time  to  time  by  death  or  res- 
ignation of  any  member  or  of  any  officer  of  said  board.  One  other  be- 
quest, hereinafter  made,  will  sooner  or  later,  revert  to  this  board  of 
trustees.  My  desire  is  that  they  may  become  a  permanent  organization, 
until  the  rights  of  women  shall  be  established  equal  with  those  of  men ; 
and  I  hope  and  trust  that  said  board  will  receive  the  services  and  sym- 
pathy, the  donations  and  bequests,  of  the  friends  of  human  rights. 
And  being  desirous  that  said  board  should  have  the  immediate  benefit 


CHARITABLE   OR   PUBLIC   TRUSTS  271 

of  said  bequest,  without  waiting  for  my  exit,  I  have  already  paid  it  in 
advance  and  in  full  to  said  Phillips,  the  treasurer  of  said  board,  whose 
receipt  therefor  is  on  my  files. 

"Article  8th.  I  now  give  to  my  three  children  equally  the  net  income 
of  the  residue  of  my  estate,  during  the  term  of  their  natural  lives,  in 
the  following  manner,  namely :  After  the  payment  of  my  debts  and  the 
foregoing  gifts  and  bequests,  I  give,  bequeath  and  devise  one  undivided 
third  part  of  the  residue  of  my  estate,  real,  personal  and  mixed,  to  my 
brother  Edmund  Jackson  of  said  Boston,  his  successors  and  assigns,  not 
for  his  or  their  own  use,  but  in  trust,  nevertheless,  with  full  power  to 
manage,  sell  and  convey,  invest  and  re-invest,  the  same  at  his  discre- 
tion, with  a  view  to  safety  and  profit ;"  and  "the  whole  net  income 
thereof  shall  be  paid  semi-annually  to  my  daughter  Eliza  F.  Eddy,  dur- 
ing her  natural  life;"  and  at  her  decease,  one-half  of  such  income  to 
be  paid  semi-annually  "to  the  board  of  trustees  constituted  in  the  sixth 
article  of  this  will,  to  be  expended  by  them  to  promote  the  intent  and 
purpose  therein  directed,"  and  the  other  half  to  Lizzie  F.  Bacon,  her 
daughter,  during  her  natural  life;  and  at  the  decease  of  both  mother 
and  daughter,  "to  pay  and  convey  the  whole  of  said  trust  fund  to  said 
board  of  trustees  constituted  in  the  sixth  article  of  this  will,  to  be  ex- 
pended by  them  in  the  manner,  and  for  the  intent  and  purpose,  therein 
directed." 

By  article  9th,  the  testator  gave  another  undivided  third  part  of  the 
said  residue  to  his  brother  Edmund,  his  successors  and  assigns,  in  trust, 
with  like  powers  of  management  and  investment,  "and  the  whole  net 
income  thereof  shall  be  paid  semi-annually  to  my  son  James  Jackson, 
during  the  term  of  his  natural  life;  at  his  decease,  I  direct  said  trustee, 
or  whoever  may  then  be  duly  qualified  to  execute  this  trust,  to  pay 
semi-annually  one-half  part  of  the  net  income  thereof  to  the  board  of 
trustees  constituted  in  the  fourth  article  of  this  will,  and  the  other  half- 
part  of  said  net  income  shall  be  paid  semi-annually  to  his  children 
equally,  during  their  natural  lives ;  at  the  decease  of  all  his  children, 
if  they  survive  him,  I  direct  said  trustee,  or  whoever  shall  then  be  duly 
authorized  to  execute  this  trust,  to  pay  and  convey  the  whole  of  said 
trust  fund  to  said  board  of  trustees  constituted  in  said  fourth  article  in 
this  will,  to  be  expended  by  them  for  the  intent  and  purpose  directed  in 
said  fourth  article ;  but,  in  case  my  said  son  James  should  leave  no 
child  living  at  the  time  of  his  decease,  then,  at  his  decease,  I  direct  said 
trustee,  or  whoever  shall  then  be  duly  authorized  to  execute  this  trust, 
to  pay  and  convey  the  whole  of  said  trust  fund  to  said  board  of  trustees 
constituted  in  the  fourth  article  of  this  will,  to  be  expended  by  them 
for  the  intent  and  purpose  therein  directed." 

By  article  10th,  the  testator  made  a  similar  bequest  and  devise  of  the 
remaining  undivided  third  part  of  said  residue  to  his  brother  George 
Jackson,  his  successors  and  assigns,  and  in  trust  to  pay  the  whole  net 
income  thereof  semi-annually  to  the  testator's  daughter  Harriette  M. 
Palmer,  during  her  natural  life,  and  at  her  decease,  one  half  of  such 


272  EQUITABLE  ESTATES — USES    AND    TRUSTS 

income  "to  the  board  of  trustees  constituted  in  the  fourth  article  of  this 
will,  to  be  expended  by  them  in  the  manner  and  for  the  intent  and  pur- 
pose therein  directed ;"  and  the  other  half,  in  equal  proportions,  to  all 
her  children  that  may  survive  her,  during  the  term  of  their  natural 
lives ;  and,  at  their  decease,  to  pay  and  convey  the  whole  of  said  trust 
fund  to  said  board  of  trustees ;  "but,  in  case  my  said  daughter  Har- 
riette  M.  Palmer  should  outlive  all  her  children,  then,  at  her  decease,  I 
direct  said  trustee,  or  whoever  shall  then  be  duly  authorized  to  execute 
this  trust,  to  pay  and  convey  the  whole  of  said  trust  fund  to  the  board 
of  trustees  constituted  in  said  fourth  article  in  this  will,  to  be  expended 
by  them  as  aforesaid." 

Gray,  J.  This  case  presents  for  decision  many  important  and  in- 
teresting questions,  which  have  been  the  subject  of  repeated  discussion 
at  the  bar  and  of  much  deliberation  and  reflection  by  the  court.  The 
able  and  elaborate  arguments  of  counsel  have  necessarily  involved  the 
consideration  of  the  fundamental  principles  of  the  law  of  charities,  and 
of  a  great  number  of  the  precedents  from  which  they  are  to  be  derived  ; 
and  have  disclosed  such  diversity  of  opinion  upon  the  extent  and  ap- 
plication of  those  principles,  and  the  just  interpretation  and  effect  of 
the  adjudged  cases,  as  to  require  the  principles  in  question  to  be  fully 
stated,  and  supported  by  a  careful  examination  of  authorities,  in  deliver- 
ing judgment. 

I.  By  the  law  of  this  commonwealth,  as  by  the  law  of  England,  gifts 
to  charitable  uses  are  highly  favored,  and  will  be  most  liberally  con- 
strued in  order  to  accomplish  the  intent  and  purpose  of  the  donor;  and 
trusts  which  cannot  be  upheld  in  ordinary  cases,  for  various  reasons, 
will  be  established  and  carried  into  effect  when  created  to  support  a 
gift  to  a  charitable  use.  The  most  important  distinction  between  chari- 
ties and  other  trusts  is  in  the  time  of  duration  allowed  and  the  degree 
of  defmiteness  required.  The  law  does  not  allow  property  to  be  made 
inalienable,  by  means  of  a  private  trust,  beyond  the  period  prescribed 
by  the  rule  against  perpetuities,  being  a  life  or  lives  in  being  and  twen- 
ty-one years  afterwards ;  and  if  the  persons  to  be  benefited  are  uncer- 
tain and  cannot  be  ascertained  within  that  period,  the  gift  will  be  ad- 
judged void,  and  a  resulting  trust  declared  for  the  heirs  at  law  or  dis- 
tributees. But  a  public  or  charitable  trust  may  be  perpetual  in  its  dura- 
tion, and  may  leave  the  mode  of  application  and  the  selection  of  particu- 
lar objects  to  the  discretion  of  the  trustees.  Sanderson  v.  White,  18 
Pick.  333,  29  Am.  Dec.  591 ;  Odell  v.  Odell,  10  Allen,  5,  6,  and  authori- 
ties cited ;  Saltonstall  v.  Sanders,  11  Allen,  446 ;  Lewin,  Trusts,  c.  2. 

Each  of  the  bequests  in  the  will  of  Francis  Jackson  which  the  court 
is  asked  in  this  case  to  sustain  as  charitable,  is  to  a  permanent  board  of 
trustees,  for  a  purpose  stated  in  general  terms  only.  The  question  of 
the  validity  of  these  trusts  is  not  to  be  determined  by  the  opinions  of 
individual  judges  or  of  the  whole  court  as  to  their  wisdom  or  policy, 
but  by  the  established  principles  of  law ;  and  does  not  depend  mereh 
upon  their  being  permitted  by  law,  but  upon  their  being  of  that  peculiar 


CHAEITABLE    OR   PUBLIC   TRUSTS  273 

nature  which  the  law  deems  entitled  to  extraordinary  favor  because  it 
regards  them  as  charitable. 

It  has  been  strenuously  contended  for  the  heirs  at  law  that  neither 
of  the  purposes  declared  by  the  testator  is  charitable  within  the  intent 
and  purview  of  St.  43  Eliz.  c.  4,  which  all  admit  to  be  the  principal  test 
and  evidence  of  what  are  in  law  charitable  uses.  It  becomes  necessary 
therefore  to  consider  the  spirit  in  which  that  statute  has  been  con- 
strued and  applied  by  the  courts. 

The  preamble  of  the  statute  mentions  three  classes  of  charitable 
gifts,  namely,  First:  For  the  relief  and  assistance  of  the  poor  and 
needy,  specifying  only  "sick  and  maimed  soldiers  and  mariners,"  "edu- 
cation and  preferment  of  orphans,"  "marriages  of  poor  maids,"  "sup- 
portation,  aid  and  help  of  young  tradesmen,  handicraftsmen  and  per- 
sons decayed,"  "relief  or  redemption  of  prisoners  and  captives,"  and 
assistance  of  poor  inhabitants  in  paying  taxes,  either  for  civil  or  mil- 
itary objects.  Second :  For  the  promoting  of  education,  of  which  the 
only  kinds  specified  in  the  statute  (beyond  the  "education  and  prefer- 
ment of  orphans,"  which  seems  mo^-e  appropriately  to  fall  within  the 
first  class)  are  those  "for  maintenance  of  schools  of  learning,  free 
schools,  and  scholars  of  universities."  Third :  For  the  repair  and 
maintenance  of  public  buildings  and  works,  under  which  are  enu- 
merated "repair  of  ports,  havens,"  and  "seabanks,"  for  promoting 
commerce  and  navigation  and  protecting  the  land  against  the  encroach- 
ments of  the  sea ;  of  "bridges,"  "causeways"  and  "highways,"  by  which 
the  people  may  pass  from  one  part  of  the  country  to  another;  of 
"churches,"  in  which  religion  may  be  publicly  taught ;  and  of  "houses 
of  correction." 

It  is  well  settled  that  any  purpose  is  charitable  in  the  legal  sense  of 
the  word,  which  is  within  the  principle  and  reason  of  this  statute,  al- 
though not  expressly  named  in  it;  and  many  objects  have  been  upheld 
as  charities,  which  the  statute  neither  mentions  nor  distinctly  refers 
to.  Thus  a  gift  "to  the  poor"  generally,  or  to  the  poor  of  a  particular 
town,  parish,  age,  sex,  race,  or  condition,  or  to  poor  emigrants,  though 
not  falling  within  any  of  the  descriptions  of  poor  in  the  statute,  is  a 
good  charitable  gift.  Saltonstall  v.  Sanders,  11  Allen,  455-461,  and 
cases  cited;  Magill  v.  Brown,  Brightly,  N.  P.  405,  406;  Barclay  v. 
Maskelyne,  4  Jur.  (N.  S.)  1294;  Chambers  v.  St.  Louis,  29  Mo.  543. 
So  gifts  for  the  promotion  of  science,  learning  and  useful  knowledge, 
though  by  different  means  and  in  different  ways  from  those  enumer- 
ated under  the  second  class ;  and  gifts  for  bringing  water  into  a  town, 
for  building  a  town-house,  or  otherwise  improving  a  town  or  city, 
though  not  alluded  to  in  the  third  class ;  have  been  held  to  be  charita- 
ble. American  Academy  v.  Harvard  College,  12  Gray,  594;  Drury 
V.  Natick,  10  Allen,  177-182,  and  authorities  cited. 

By  modern  decisions  in  England,  gifts  towards  payment  of  the 
national  debt,  or  "to  the  queen's  chancellor  of  the  exchequer  for  the 
Burd.Cas.Real  Prop. — 18 


274  EQUITABLE  ESTATES — USES    AND    TRUSTS 

time  being,  to  be  applied  for  the  benefit  and  advantage  of  Great 
Britain,"  are  legal  charities.  Tudor,  Char.  Trusts  (2d  Ed.)  14,  15, 
and  cases  cited.  Sergeant  Maynard,  long  before,  gave  an  opinion  that 
a  bequest  "to  the  public  use  of  the  country  of  New  England"  was  a 
good  disposition  to  a  charitable  use.  1  Hutch.  Hist.  Mass.  (2d  Ed.) 
101,  note.  And  it  may  be  mentioned  as  evidence  of  the  use  of  the 
word  "charitable"  by  the  founders  of  Massachusetts,  that  it  was  ap- 
plied by  the  Massachusetts  Company  in  1628,  before  they  crossed 
the  ocean,  to  "the  common  stock"  to  be  "raised  from  such  as  bear  good 
affection  to  the  plantation  and  the  propagation  thereof,  and  the  same 
to  be  employed  only  in  defrayment  of  public  charges,  as  maintenance 
of  ministers,  transportation  of  poor  families,  building  of  churches  and 
fortifications,  and  all  other  public  and  necessary  occasions  of  the  plan- 
tation."    1  Mass.  Col.  Rec.  68. 

No  kind  of  charitable  trusts  finds  less  support  in  the  words  of  St. 
43  Eliz.  than  the  large  class  of  pious  and  religious  uses,  to  which  the 
statute  contains  no  more  distinct  reference  than  in  the  words  "repair 
of  churches."  Such  uses  had  indeed  been  previously  recognized  as 
charitable,  and  entitled  to  peculiar  favor,  by  many  acts  of  parliament, 
as  well  as  in  the  courts  of  justice.  St.  13  Edw.  I.  c.  41 ;  17  Edw.  II. 
c.  2;- 23  Hen.  VIII.  c.  10;  1  Edw.  VI.  c.  14;  Anon.,  And.  43,  pi.  108; 
Pitts  v.  James,  Hob.  123;  Cheney's  Case,  Co.  Litt.  342;  Gibbons  v. 
}klaltyard,  Poph.  6,  Moore,  594;  Coke's  note  to  Porter's  Case,  1  Coke, 
26a;  Bruerton's  Case,  6  Coke,  lb,  2a;  Barry  v.  Ley,  Dwight,  Char. 
Cas.  92.  In  the  latest  of  those  acts,  the  "erecting  of  grammar  schools 
for  the  education  of  youth  in  virtue  and  godliness,  the  further  aug- 
menting of  the  universities,  and  better  provision  for  the  poor  and 
needy,"  were  classed  with  charities  for  the  maintenance  of  preachers, 
and  called  "good  and  godly  uses ;"  and  grammar  schools  were  consid- 
ered in  those  times  an  effectual  means  of  forwarding  the  progress  of 
the  Reformation.  St.  1  Edw.  VI.  c.  14,  §§  1,  8,  9;  Attorney  General 
V.  Downing,  Wilm.  15;  Boyle,  Char.  7,  8. 

Sir  Francis  Moore,  who  drew  St.  43  Eliz.,  indeed  says  that  a  gift 
to  maintain  a  chaplain  or  minister  to  celebrate  divine  service  could 
not  be  the  subject  of  a  commission  under  the  statute;  but  "was  of  pur- 
pose omitted  in  the  penning  of  the  act,"  lest,  in  the  changes  of  opinion 
in  matters  of  religion,  such  gifts  might  be  confiscated  in  a  succeeding 
reign  as  superstitious.  Yet  he  also  says  that  such  a  gift  might  be  en- 
forced by  "the  chancellor  by  his  chancery  authority ;"  and  cites  a  case 
in  which  it  was  so  decreed.  Duke,  Char.  Uses  (Bridgman's  Ed.)  125, 
154.  And  from  very  soon  after  the  passage  of  the  statute,  gifts  for 
the  support  of  a  minister,  the  preaching  of  an  annual  sermon,  or  other 
uses  connected  with  public  worship  and  the  advancement  of  religion. 
have  been  constantly  upheld  and  carried  out  as  charities  in  the  English 
courts  of  chancery.  Anon.,  Cary,  39;  Nash,  Char.;  Dwight,  Char.  Cas. 
114;  Pcmber  v.  Inhabitants  of  Knighton,  Heme.  Char.  Uses,  101, 
Toth.  (2d  Ed.)  34;  Duke,  Char.  Uses,  354,  356,  381,  570.  614;   Boyle, 


CHARITABLE    OK   PUBLIC   TRUSTS  275 

Char.  39-41;  Tudor,  Char.  Trusts,  10,  11.  So  in  this  commonwealth, 
trusts  for  the  support  of  public  worship  and  reHgious  instruction,  or 
the  spreading  of  religion  at  home  or  abroad,  have  always  been  deemed 
charitable  uses.  4  Dane,  Abr.  237 ;  Bartlet  v.  King,  12  Mass.  537,  7 
Am.  Dec.  99;  Going  v.  Emery,  16  Pick.  107,  26  Am.  Dec.  645;  Sohier 
V.  St.  Paul's  Church,  12  Mete.  250;  Brown  v.  Kelsey,  2  Cush.  243; 
Earle  v.  Wood,  8  Cush.  445. 

It  is  not  necessary  in  this  connection  to  speculate  whether  the  ad- 
mission of  pious  uses  into  the  rank  of  legal  charities  in  modern  times 
is  to  be  attributed  to  the  influence  of  the  civil  law ;  to  their  having  been 
mentioned  in  the  earlier  English  statutes ;  to  a  more  liberal  interpre- 
tation, after  religion  had  become  settled  in  England,  of  the  words  "re- 
pair of  churches,"  or,  possibly,  of  the  clauses  relating  to  gifts  for  the 
benefit  of  education,  in  St.  43  Eliz. ;  or  to  the  support  given  by  the 
court  of  chancery  to  public  charitable  trusts,  independently  of  any 
statute.  It  is  sufficient  for  our  present  purpose  to  observe  that  pious 
and  religious  uses  are  clearly  not  within  the  strict  words  of  the  statute, 
and  can  only  be  brought  within  its  purview  by  the  largest  extension  of 
its  spirit. 

The  civil  law,  from  which  the  English  law  of  charities  was  ni-uii- 
festly  derived,  considered  wills  made  for  good  and  pious  uses  as  priv- 
ileged testaments,  which  were  not,  like  other  wills,  void  for  uncertain- 
ty in  the  objects,  and  which  must  be  carried  into  effect  even  if  their 
conditions  could  not  be  exactly  observed ;  and  included  among  such 
uses  (which  it  declared  to  be  in  their  nature  perpetual)  bequests  for 
the  poor,  orphans,  widows,  strangers,  prisoners,  the  redemption  of 
captives,  the  maintenance  of  clergymen,  the  benefit  of  churches,  hos- 
pitals, schools  and  colleges,  the  repairing  of  city  walls  and  bridges,  the 
erection  of  public  buildings,  or  other  ornament  or  improvement  of  a 
city.  Poth.  Pand.  lib.  30-32,  Nos.  57-62;  Code,  lib.  1,  tit.  2,  cc.  15, 
19;  Id.,  tit.  3,  cc.  24,  28,  42,  46,  49,  57;  Godol.  Leg.  pt.  1,  c.  5,  §  4; 

2  Kent,  Comm.  (6th  Ed.)  257;  2  Story,  Eq.  Jur.  §§  1137-1141;  Mc- 
Donogh  V.  Murdoch,  15  How.  405,  410,  414,  14  L.  Ed.  732. 

Charities  are  not  confined  at  the  present  day  to  those  which  were 
permitted  by  law  in  England  in  the  reign  of  Elizabeth.  A  gift  for  the 
advancement  of  religion  or  other  charitable  purpose  in  a  manner  per- 
mitted by  existing  laws  is  not  the  less  valid  by  reason  of  having  such 
an  object  as  would  not  have  been  legal  at  the  time  of  the  passage  of 
the  statute  of  charitable  uses.  For  example,  charitable  trusts  for  dis- 
senters from  the  established  church  have  been  uniformly  upheld  in 
England  since  the  toleration  act  of  1  Wm.  &  M.  c.  18,  removed  the 
legal  disabilities  under  which  such  sects  previously  labored.  Attorney 
General  v.  Hickman,  2  Eq.  Cas.  Abr.  193,  W.  Kel.  34;  Loyd  v.  Spillet. 

3  P.  Wms.  344,  2  Atk.  148;  Attorney  General  v.  Cock,  2  Ves.  Sr. 
273.  And  in  this  country  since  the  Revolution  no  distinction  has  been 
made  between  charitable  gifts  for  the  benefit  of  different  religious 
sects. 


276  EQUITABLE  ESTATES — USES   AND   TRUSTS 

Gifts  for  purposes  prohibited  by  or  opposed  to  the  existing  laws 
cannot  be  upheld  as  charitable,  even  if  for  objects  which  would  other- 
wise be  deemed  such.  The  bounty  must,  in  the  words  of  Sir  Francis 
Moore,  be  "according  to  the  laws,  not  against  the  law,"  and  "not  given 
to  do  some  act  against  the  law."  Duke,  Char.  Uses,  126,  169.  So 
Mr.  Dane  defines,  as  undoubted  charities,  "such  as  are  calculated  to 
relieve  the  poor,  and  to  promote  such  education  and  employment  as 
the  laws  of  the  land  recognize  as  useful."  4  Dane,  Abr.  237.  Upon 
this  principle,  the  English  courts  have  refused  to  sustain  gifts  for 
printing  and  publishing  a  book  inculcating  the  absolute  and  inalienable 
supremacy  of  the  pope  in  ecclesiastical  matters ;  or  for  the  support  of 
the  Roman  Catholic  or  the  Jewish  religion,  before  such  gifts  were 
countenanced  by  act  of  parliament.  De  Themmines  v.  De  Bonneval, 
5  Russ.  288;  Tudor,  Char.  Trusts,  21-25,  and  cases  cited.  And  a  be- 
quest "towards  the  political  restoration  of  the  Jews  to  Jerusalem  and 
to  their  own  land,"  has  been  held  void,  as  tending  to  create  a  political 
revolution  in  a  friendly  country.  Habershon  v.  Vardon,  4  De  Gex  & 
S.  467.  In  a  free  republic,  it  is  the  right  of  every  citizen  to  strive  in 
a  peaceable  manner  by  vote,  speech  or  writing,  to  cause  the  laws,  or 
even  the  constitution,  under  which  he  lives,  to  be  reformed  or  altered 
by  the  legislature  or  the  people.  But  it  is  the  duty  of  the  judicial  de- 
partment to  expound  and  administer  the  laws  as  they  exist.  And 
trusts  whose  expressed  purpose  is  to  bring  about  changes  in  the  laws 
or  the  political  institutions  of  the  country  are  not  charitable  in  such 
a  sense  as  to  be  entitled  to  peculiar  favor,  protection  and  perpetuation 
from  the  ministers  of  those  laws  which  they  are  designed  to  modify 
or  subvert. 

A  precise  and  complete  definition  of  a  legal  charity  is  hardly  to  be 
found  in  the  books.  The  one  most  commonly  used  in  modern  cases, 
originating  in  the  judgment  of  Sir  William  Grant,  confirmed  by  that 
of  Lord  Eldon,  in  Morice  v.  Bishop  of  Durham,  9  Ves.  405,  10  Ves. 
541 — that  those  purposes  are  considered  charitable  which  are  enumer- 
ated in  St.  43  Eliz.  or  which  by  analogies  are  deemed  within  its  spirit 
and  intendment — leaves  something  to  be  desired  in  point  of  certainty, 
and  suggests  no  principle.  Mr.  Binney,  in  his  great  argument  in  the 
Girard  Will  Case,  41,  defined  a  charitable  or  pious  gift  to  be  "what- 
ever is  given  for  the  love  of  God,  or  for  the  love  of  your  neighbor,  in 
the  catholic  and  universal  sense — given  from  these  motives,  and  to 
these  ends — free  from  the  stain  or  taint  of  every  consideration 
that  is  personal,  private  or  selfish."  And  this  definition  has  been 
approved  by  the  supreme  court  of  Pennsylvania.  Price  v.  Max- 
well, 28  Pa.  35.  A  more  concise  and  practical  rule  is  that  of  Lord 
Camden,  adopted  by  Chancellor  Kent,  by  Lord  Lyndhurst,  and  by  the 
supreme  court  of  the  United  States — "A  gift  to  a  general  public  use, 
which  extends  to  the  p5or  as  well  as  the  rich."  Jones  v.  Williams, 
Amb.  652;  Coggeshall  v.  Pelton,  7  Johns.  Ch.  (N.  Y.)  294,  11  Am. 
Dec.  471;  Mitford  v.  Reynolds,  1  Phil.  191,  192;  Perin  v.  Carey,  24 


CHARITABLE    OR   PUBLIC   TRUSTS  277 

How.  506,  16  L.  Ed.  701.  A  charity,  in  the  legal  sense,  may  be  more 
fully  defined  as  a  gift,  to  be  applied  consistently  with  existing  laws, 
for  the  benefit  of  an  indefinite  number  of  persons,  either  by  bringing 
their  minds  or  hearts  under  the  influence  of  education  or  religion,  by 
relieving  their  bodies  from  disease,  suffering  or  constraint,  by  assist- 
ing them  to  establish  themselves  in  life,  or  by  erecting  or  maintaining 
public  buildings  or  works  or  otherwise  lessening  the  burdens  of  govern- 
ment. It  is  immaterial  whether  the  purpose  is  called  charitable  in  the 
gift  itself,  if  it  .is  so  described  as  to  show  that  it  is  charitable  in  its 
nature. 

If  the  words  of  a  charitable  bequest  are  ambiguous  or  contradictory, 
they  are  to  be  so  construed  as  to  support  the  charity,  if  p6ssible.  It  is 
an  established  maxim  of  interpretation,  that  the  court  is  bound  to 
carry  the  will  into  effect,  if  it  can  see  a  general  intention  consistent 
with  the  rules  of  law,  even  if  the  particular  mode  or  manner  pointed 
out  by  the  testator  is  illegal.  Bartlet  v.  King,  12  Mass.  543,  7  Am. 
Dec.  99;  Inglis  v.  Sailor's  Snug  Harbor,  3  Pet.  117,  118,  7  L.  Ed.  617. 
If  the  testator  uses  a  word  which  has  two  meanings,  one  of  which 
will  effect  and  the  other  defeat  his  object,  the  first  is  to  be  adopted. 
Saltonstall  v.  Sanders,  II  Allen,  455.  When  a  charitable  intent  ap- 
pears on  the  face  of  the  will,  but  the  terms  used  are  broad  enough 
to  allow  of  the  fund  being  applied  either  in  a  lawful  or  an  unlawful 
manner,  the  gift  will  be  supported,  and  its  application  restrained  with- 
in the  bounds  of  the  law.  The  most  frequent  illustrations  of  this  in 
the  English  courts  have  arisen  under  St.  9  Geo.  II,  c.  36  (commonly 
called  the  "Statute  of  Mortmain"),  prohibiting  devises  of  land,  or  be- 
quests of  money  to  be  laid  out  in  land,  to  charitable  uses.  In  the  lead- 
ing case.  Lord  Hardwicke  held  that  a  direction  to  executors  to  "settle 
and  secure,  by  purchase  of  lands  of  inheritance,  or  otherwise,  as  they 
shall  be  advised,  out  of  my  personal  estate,"  two  annuities  to  be  paid 
yearly  forever  for  charitable  objects,  was  valid,  because  it  left  the  op- 
tion to  the  executor  to  make  the  investment  in  personal  property, 
which  was  not  prohibited  by  the  statute;  and  said,  "This  bequest  is 
not  void,  and  there  is  no  authority  to  construe  it  to  be  void,  if  by  law 
it  can  possibly  be  made  good,"  or  (according  to  another  and  perhaps 
more  accurate  report)  "no  authority  to  construe  it  to  be  void  by  law,  if 
it  can  possibly  be  made  good."  Sorresby  v.  Hollins.  9  Mod.  221,  1 
Coll.  Jurid.  439. 

The  doctrine  of  that  case  has  ever  since  been  recognized  as  sound 
law.  Attorney  General  v.  Whitchurch,  3  Ves.  144;  Curtis  v.  Hutton, 
14  Ves.  539;  Dent  v.  Allcroft,  30  B.eav.  340;  Mayor,  etc.,  of  Faver- 
sham  V.  Ryder,  5  De  Gex,  M.  &  G.  353;  Edwards  v.  Hall,  11  Hare, 
12,  6  De  Gex,  M.  &  G.  89.  In  a  like  spirit  the  house  of  lords  recently 
decided  that  a  bequest  to  erect  buildings  for  charitable  purposes  if 
other  lands  should  be  given  was  valid,  and  could  not  be  held  to  be  im- 
pliedly prohibited  by  St.  9  Geo.  II.  Philpott  v.  St.  George's  Hospital, 
6  H.  L.  Cas.  338.     The  rule  stated  in  Attorney  General  v.  Williams, 


278  EQUITABLE  ESTATES — USES    AND    TRUSTS 

2  Cox,  Ch.  388,  and  Tatham  v.  Drummond,  11  L.  T.  (N.  S.)  325,  upon 
which  the  heirs  at  law  rely,  that  "the  court  will  not  alter  its  conception 
of  the  purposes  of  a  testator,  merely  because  those  intentions  happen 
to  fall  within  the  prohibition  of  the  statute  of  mortmain,"  shows  that 
no  forced  construction  of  the  testator's  language  is  to  be  adopted  to 
avoid  illegality,  but  does  not  affect  the  principle  that  a  bequest  which 
according  to  the  fair  meaning  of  the  words  may  include  a  legal  as  well 
as  an  illegal  application  is  to  be  held  valid. 

In  the  light  of  these  general  principles,  we  come  to  the  considera- 
tion of  the  language  of  the  different  bequests  in  this  will. 

II.  The  first  bequest  which  is  drawn  in  question  is  that  contained 
in  the  fourth  article  of  the  will,  by  which  the  sum  of  ten  thousand 
dollars  is  given  in  trust  to  be  used  and  expended  at  the  discretion  of 
the  trustees-,  "in  such  sums,  at  such  times  and  such  places  as  they  deem 
best,  for  the  preparation  and  circulation  of  books,  newspapers,  the  de- 
livery of  speeches,  lectures  and  such  other  means  as  in  their  judgment 
will  create  a  public  sentiment  that  will  put  an  end  to  the  negro  slavery 
in  this  country ;"'  and  the  testator  expresses  a  desire  that  they  may  be- 
come a  permanent  organization,  and  a  hope  "that  they  will  receive 
the  services  and  sympathy,  the  donations  and  bequests,  of  the  friends 
of  the  slave." 

Among  the  charitable  objects  specially  designated  in  St.  43  Eliz. 
is  the  "relief  or  redemption  of  prisoners  and  captives."  And  this  was 
not  a  peculiarity  of  the  law  of  England  or  of  that  age.  The  civil 
law  regarded  the  redemption  of  captives  as  the  highest  of  all  pious 
uses — in  the  words  of  Justinian,  causa  piissima — and  not  only  declared 
that  no  heir,  trustee  or  legatee  should  infringe  or  unjustly  defeat  the 
pious  intentions  of  the  testator  by  asserting  that  a  legacy  or  trust  for 
the  redemption  of  captives  was  uncertain,  and  provided  for  the  ap- 
pointment of  a  trustee  when  none  was  named  in  the  will,  and  for  in- 
forming him  of  the  bequest,  but  even  authorized  churches  to  alienate 
their  sacred  vessel  and  vestments  for  this  one  purpose,  upon  the  ground 
that  it  was  reasonable  that  the  souls  or  lives  of  men  should  be  pre- 
ferred to  any  vessels  or  vestments  whatsoever — "Ouoniam  non  ab- 
surdum  est  animas  hominum  quibuscunque  vasis  vel  vestimentis  pre- 
ferri."  Code,  lib.  1,  tit.  2,  c.  22;  Id.,  tit.  3,  cc.  28,  49;  Id.,  lib.  8,  tit. 
34,  c.  36;  Nov., 7,  c.  g;Id.,  p.  115,  c.  3;  Id.,  p.  120,  c.  10;  Id.,  p.  131. 
c.  11 ;  Godol.  Leg.  pt.  1,  c.  5,  §  4. 

The  captives  principally  contemplated  in  St.  43  Eliz.  were  doubtless 
Englishmen  taken  and  held  as  slaves  in  Turkey  and  Barbary.  And  the 
relief  of  our  own  citizens  frorn,  such  captivity  was  always  deemed 
charitable  in  Massachusetts,  an  illustration  of  which  is  found  in  the 
records  of  the  governor  and  council  in  1693.  by  whom  a  petition  of 
the  relations  of  two  inhabitants  of  the  province,  "some  time  since 
taken  by  a  Salley  man  of  war,  and  now  under  Turkish  captivity  and 
slavery,"  for  permission  "to  ask  and  receive  the  charity  and  public 
contribution  of  well  disposed  persons  for  redeeming  them  out  of  their- 


CHARITABLE    OR   PUBLIC   TRUSTS  279 

miserable  suffering  and  slavery,"  was  granted ;  "the  money  so  collect- 
ed to  be  employed  for  the  end  aforesaid,  unless  the  said  persons  hap- 
pen to  die  before,  make  their  escape,  or  be  in  any  other  way  redeemed ; 
then  the  money  so  gathered  to  be  improved  for  the  redemption  of 
some  others  of  this  province,  that  are  or  may  be  in  like  circumstances, 
as  the  governor  and  council  shall  direct."  Council  Rec.  1693,  fol.  323. 
But  there  is  no  more  reason  for  confining  the  words  of  the  statute 
of  Elizabeth  to  such  captives,  than  for  excluding  from  the  class  of 
religious  charities  gifts  for  preaching  the  gospel  to  the  heathen,  which 
have  uniformly  been  sustained  as  charitable,  here  and  in  England. 
Boyle,  Char.  41 ;  Bartlet  v.  King,  12  Mass.  537,  7  Am.  Dec.  99.  In- 
deed it  appears  by  Sir  Francis  Moore's  reading  upon  the  statute,  that 
even  in  his  time  the  word  "captives"  might  include  captive  enemies. 
Duke,  Char.  Uses,  158. 

It  was  argued  that  the  slave  trade  was  fostered  and  rewarded  by 
the  English  government  in  the  reign  of  Elizabeth,  and  therefore  gifts 
for  the  relief  of  negro  slaves  could  not  be  deemed  within  the  purview 
of  the  statute  of  charitable  uses.  The  fact  is  undoubted ;  but  the  con- 
clusion does  not  follow.  The  permission  of  slavery  by  law  does  not 
prevent  emancipation  from  being  charitable.  A  commission  of  manu- 
mission, granted  by  Queen  Elizabeth,  twenty-seven  years  before  the 
statute,  recites  that  in  the  beginning  God  created  all  men  free  by  na- 
ture, and  afterwards  the  law  of  nations  placed  some  under  the  yoke 
of  slavery,  and  that  the  queen  believed  it  would  be  pious  and  accepta- 
ble to  God  and  according  to  Christian  charity — "pium  fore  credimus 
et  Deo  acceptabile  Christianaique  charitati  consentaneum" — to  wholly 
enfranchise  the  villeins  of  the  crown  on  certain  roval  manors.  20 
Howell,  St.  Tr.  1372.    See,  also.  Bar.  Ob.  (5th  Ed.)  305,  308. 

The  spirit  of  the  Roman  law  upon  this  point  is  manifested  by  an 
edict  of  Constantine,  which  speaks  of  those  who  with  a  religious  senti- 
ment in  the  bosom  of  the  church  grant  their  slaves  that  liberty  which 
is  their  due — "Qui  religiosa  niente  in  ecclesise  gremio  servis  suis 
meritam  concesserint  libertatem."  Code,  lib.  1,  tit.  13,  c.  2.  That 
the  words  of  the  statute  of  charitable  uses  may  be  extended  to  negro 
slaves  of  English  masters  is  clearly  shown  by  the  decision  of  Lord 
Cottenham,  when  master  of  the  rolls,  applying  for  the  benefit  of  ne- 
groes in  the  British  colonies  in  the  West  Indies  the  accumulations  of 
a  bequest  made  in  1670  "to  redeem  poor  slaves."  Attorney  General 
V.  Gibson,  2  Beav.  317,  note;  Id.,  cited  Craig  &  P.  226.  In  dealing 
with  such  a  question,  great  regard  is  to  be  had  to  the  favor  which  the 
law  gives  to  liberty,  so  eloquently  expressed  by  Chief  Justice  Eor- 
tescue :  "Crudelis  enim  necessario  judicabitur  lex,  quae  servitutem 
augmentat  et  minuit  libertatem.  Nam  pro  ea  natura  semper  implorat 
humana.  Quia  ab  homine  et  pro  vitio  introducta  est  servitus.  Sed 
libertas  a  Deo  hominis  est  indita  naturae.  Ouare  ipsa  ab  homine 
sublata  semper  redire  gliscit,  ut  facit  omne  quod  libertati  naturali  pri- 
vatur.     Quo  ipse  et  crudelis  judicandus  est,  qui  libertati  non  favet. 


2S0  EQUITABLE   ESTATES USES    AND    TRUSTS 

Haec  considerantia  Angliae  jura  in  omni  casu  libertati  dant  favorem." 
Fortes.  De  Laud.  c.  42. 

But  the  question  of  the  lawfulness  of  this  gift,  if  falling  within  the 
class  of  charitable  uses,  depends  not  upon  the  laws  and  the  public 
policy  of  England  at  the  time  of  the  passage  of  the  statute,  but  upon 
our  own  at  the  time  of  the  death  of  the  testator.  It  was  seriously 
argued  that,  before  the  recent  amendment  of  the  constitution  of  the 
United  States,  "a  trust  to  create  a  sentiment  to  put  an  end  to  negro 
slavery,  would,  having  regard  to  the  constitution  and  laws  under  which 
we  live,  be  against  public  policy  and  thus  be  void ;"  but  the  court  is 
unable  to  see  any  foundation  for  this  position  in  the  constitution  and 
laws,  either  of  the  United  States  or  of  this  commonwealth. 

The  law  of  Massachusetts  has  always  been  peculiarly  favorable  to 
freedom,  as  may  be  shown  by  a  brief  outline  of  its  history.  The 
"rights,  liberties  and  privileges,"  established  by  the  general  court  of 
the  colony  in  1641,  to  be  "impartially  and  inviolably  enjoyed  and  ob- 
:^erved  throughout  our  jurisdiction  forever,"  declared :  "There  shall 
never  be  any  bond  slavery,  villenage  or  captivity  amongst  us,  unless  it 
be  lawful  captives  taken  in  just  wars,  and  such  strangers  as  willingly 
sell  themselves  or  are  sold  to  us.  And  these  shall  have  all  the  liberties 
and  Christian  usages  which  the  law  of  God  established  in  Israel  con- 
cerning such  persons  doth  morally  require.  This  exempts  none  from 
servitude  who  shall  be  judged  thereto  by  authority."  The  last  proviso 
evidently  referred  to  punishment  for  crime.  Body  of  Liberties,  art. 
91.  This  article,  leaving  out  the  word  "strangers"  in  the  clause  as 
to  slaves  acquired  by  sale,  was  included  in  each  revision  of  the  laws 
of  the  colony.  Mass.  Col.  Laws  (Ed.  1660)  5;  Id.  (Ed.  1672)  10; 
4  Mass.  Col.  Rec.  pt.  2,  p.  467.  It  is  worthy  of  observation,  that 
the  tenure  upon  which  the  Massachusetts  Company  held  their  char- 
ter, as  declared  in  the  charter  itself,  was  as  of  the  manor  of  East 
Greenwich  in  the  county  of  Kent;  that  no  one  was  ever  born  a  vil- 
lein in  Kent  (Y.  B.  30  Edw.  I,  p.  168;  Fitzh.  Abr.  "Villenage."  46; 
3  Seld.  Works,  1876) ;  and  that  the  Body  of  Liberties  contained  ar- 
ticles upon  each  of  the  principal  points  distinctive  of  the  Kentish 
tenure  of  gavelkind — freedom  from  escheats  on  attainder  and  execu- 
tion for  felony,  the  power  to  devise,  the  age  of  alienation,  and  descent 
to  all  the  sons  together — adoptin*,'  some  and  modifying  others.  Body 
of  Liberties,  arts.  10,  U,  53,  81;  2  Bl.  Comm.  84. 

In  the  laws  of  Europe,  at  the  time  of  the  foundation  of  the  colony, 
descent  was  named  first  among  the  sources  of  slavery.  The  common 
law,  following  the  civil  law,  repeated  "Servi  aut  nascuntur  aut  fiunt," 
and  differed  only  in  tracing  it  through  the  father,  instead  of  the  mother ; 
and  each  system  recognized  that  a  man  might  become  a  slave  by  capture 
in  war,  or  by  his  own  consent  or  confession  in  some  form.  Just.  Inst, 
lib.  1,  tit.  3;  Bract.  4b;  Fleta,  lib.  1,  c.  3;  Eedes  v.  Ilolbadge,  Act.  Can. 
393  ;  Swinb.  Wills,  pt.  2,  §  7 ;  Co.  Litt.  117b.  And  such  was  then  the  es- 
tablished law  of  nations.    Gro.  De  Jure  B.  lib.  2,  c.  5,  §§  27,  29;  Id. 


CHARITABLE    OR    PUBLIC   TRUSTS  281 

lib.  3,  c.  7.  In  parts  of  England,  hereditary  villenage  would  seem  to 
have  still  existed  in  fact;  and  it  was  allowed  by  law  until  since  the 
American  Revolution.  Pigg  v.  Caley,  Noy,  27;  Co.  Litt.  116-140; 
2  Inst.  28,  45 ;  2  Rolle,  Abr.  732 ;  Smith  v.  Brown,  2  Salk.  666,  Holt, 
495;  Smith  v.  Gould,  2  Salk.  667,  2  Ld.  Raym.  1275;  Treblecock's 
Case,  1  Atk.  633 ;  The  King  v.  Ditton,  4  Doug.  302.  Lord  Bacon,  in 
explaining  the  maxim,  "Jura  sanguinis  nulla  jure  civili  dirimi  possunt," 
with  a  coolness  which  shows  that  in  his  day  and  country  the  illustra- 
tion was  neither  unfamiliar  nor  shocking,  says,  "If  a  villein  be  attaint- 
ed, yet  the  lord  shall  have  the  issue  of  his  villein  born  before  or  after 
his  attainder;  for  the  lord  hath  them  jure  naturae  but  as  the  increase 
of  a  flock."     Bac.  Max.  reg.  11. 

The  Massachusetts  Body  of  Liberties,  as  Governor  Winthrop  tells 
us,  was  composed  by  Nathaniel  Ward,  who  had  been  "formerly  a 
student  and  practiser  in  the  course  of  the  common  law."  2  Winthrop's 
Hist.  New  England,  55.  In  view  of  the  other  laws  of  the  time,  the 
omission,  in  enumerating  the  legal  sources  of  slavery,  of  birth,  the 
first  mentioned  in  those  laws,  is  significant.  No  instance  is  known 
in  which  the  lawfulness  of  hereditary  slavery  in  Massachusetts  under 
the  charter  of  the  colony  or  the  province  was  affirmed  by  legislative 
or  judicial  authority;  and  it  has  been  denied  in  a  series  of  judgments 
of  this  court,  beginning  in  the  last  century,  in  each  of  which  it  was 
essential  to  the  determination  of  the  rights  of  the  parties.  Littleton 
V.  Tuttle,  4  Mass.  128,  note;  Lanesborough  v.  Westfield,  16  Mass.  74; 
Edgartown  v.  Tisbury,  10  Cush.  408.  The  case  of  Perkins  v.  Emer- 
son, 2  Dane,  Abr.  412,  did  not  touch  this  question ;  but  simply  deter- 
mined that  a  person  received  into  a  house  as  a  slave  of  the  owner  was 
not  received  "as  an  inmate,  boarder  or  tenant,"  so  that  notice  of  the 
place  whence  such  person  last  came  must  be  given  to  the  selectmen  un- 
der Prov.  St.  10  Geo.  II. ;  Anc.  Chart.  508.  No  doubt  many  children 
of  slaves  were  in  fact  held  as  slaves  here,  especially  after  the  Province 
Charter,  during  the  period  of  which  all  acts  of  the  general  court  were 
required  to  be  transmitted  to  England  for  approval.  Earlier  ordi- 
nances which  had  not  been  so  approved  were  hardly  recognized  by  the 
English  government  as  of  any  force.  The  policy  of  England  restrain- 
ed the  colonists  from  abolishing  the  African  slave  trade,  and  the  num- 
ber of  slaves  (which  had  been  very  small  under  the  comparatively  in- 
dependent government  of  the  colony)  was  much  increased.  The  prac- 
tice of  a  whole  people  does  not  always  conform  to  its  laws.  Thou- 
sands of  negroes  were  held  as  slaves  in  England  and  commonly  sold  in 
public  at  the  very  time  when  Lord  Mansfield  and  other  judges  decided 
such  holding  to  be  unlawful.  Sommersett's  Case,  20  Howell,  St.  Tr. 
72,  79;  Lofft,  17;  Quincy,  97,  note;  The  Slave  Grace,  2  Hagg.  Adm. 
105,  106. 

While  negro  slavery  existed  in  Massachusetts,  it  was  in  a  compara- 
tively mild  form.  The  marriages  of  slaves  were  protected  by  the  legis- 
lature and  the  courts ;  according  to  the  opinion  of  Hutchinson  and  of 


282  EQUITABLE  ESTATES — USES    AND    TRUSTS 

Dane,  slaves  might  hold  property;  they  were  admitted  as  witnesses,. 
even  on  capital  trials  of  white  persons,  and  on  suits  of  other  slaves 
for  freedom ;  they  might  sue  their  masters  for  wounding  or  immoder- 
ately beating  them ;  and  indeed  hardly  differed  from  apprentices  or 
other  servants  except  in  being  bound  for  life.  See  authorities  and 
records  cited  in  Quincy,  30,  31,  note;  2  Dane,  Abr.  313.  The  annual 
tax  acts  show  that  before  the  Declaration  of  Independence  they  were 
usually  taxed  as  property,  always  afterwards  as  persons.  The  general 
court  in  September,  1776,  forbade  the  sale  of  two  negroes  taken  as 
prize  of  war  on  the  high  seas  and  brought  into  this  state,  and  resolved 
that  any  negroes  so  taken  and  brought  in  should  not  be  allowed  to  be 
sold,  but  should  be  treated  like  other  prisoners.    Res.  Sept.  1776,  c.  83. 

It  was  in  Massachusetts,  by  the  first  article  of  the  declaration  of 
rights  prefixed  to  the  constitution  adopted  in  1780,  as  immediately 
afterwards  interpreted  by  this  court,  that  tVie  fundamental  axioms  of 
the  Declaration  of  Independence — "that  all  men  are  created  equal ; 
that  they  are  endowed  by  their  Creator  with  certain  inalienable  rights ; 
that  among  these  are  life,  liberty,  and  the  pursuit  of  happiness" — first 
took  at  once  the  form  and  the  force  of  express  law ;  slavery  was  thus 
wholly  abolished  in  Massachusetts ;  and  it  has  never  existed  here  since, 
except  so  far  as  the  constitution  and  laws  of  the  state  were  held  to  be 
prevented  by  the  constitution  and  laws  of  the  United  States  from 
operating  upon  fugitive  slaves.  Caldwell  v.  Jennison,  Rec.  1781,  fol. 
79,  80;  Jennison's  Petition,  Jour.  H.  R.  June  18,  1782,  fol.  89;  Com. 
V.  Jennison,  Rec.  1783,  fol.  85 ;  Parsons,  C.  J.,  in  Winchendon  v.  Hat- 
field, 4  Mass.  128;  4  Mass.  Hisf.  Coll.  203,  204;  Com.  v.  Aves,  18 
Pick.  208,  210,  215,  217;  2  Kent,  Comm.  (6th  Ed.)  252;  Betty  v.  liorton, 
5  Leigh  (Va.)  623. 

The  doctrine  of  our  law,  upon  this  subject,  as  stated  by  Chief  Justice 
Shaw  in  delivering  the  judgment  of  the  court  in  Com.  v.  Aves.  just  cit- 
ed, is  that  slavery  is  a  relation  founded  in  force,  contrary  to  natural 
right  and  the  principles  of  justice,  humanity  and  sound  policy;  and 
could  exist  only  by  the  effect  of  positive  law,  as  manifested  either  by 
direct  legislation  or  settled  usage.  The  same  principle  has  been  recog- 
nized by  Chief  Justice  Marshall  and  Mr.  Justice  Story,  speaking  for  the 
supreme  court  of  the  United  States.  The  Antelope,  10  Wheat.  120, 
121,  6  L.  Ed.  268;   Prigg  v.  Pennsylvania,  16  Pet.  611,  10  L.  Ed.  1060. 

The  constitution  of  the  United  States  uniformly  speaks  of  those  held 
in  slavery,  not  as  property,  but  as  persons ;  and  never  contained  any- 
thing inconsistent  with  their  peaceable  and  voluntary  emancipation.  As 
between  master  and  slave,  it  would  require  the  most  explicit  prohibition 
by  law  to  restrain  the  right  of  manumission.  M'Cutchen  v.  Marshall, 
8  Pet.  238,  8  L.  Ed.  923.  We  cannot  take  judicial  notice  of  the  local 
laws  of  other  states  of  the  Union  except  so  far  as  they  are  in  proof. 
Knapp  V.  Abell,  10  Allen,  488.  But  it  appears  by  cases  cited  at  the  bar 
that  bequests  of  manumission  were  formerly  favored  in  Virginia ;  and 
that  it  was  more  recently  decided  in  Mississippi  that  a  trust  created  by 


CHARITABLE    OR    PUBLIC   TRUSTS  283 

will  for  paying  the  expenses  of  transporting  the  testator's  slaves  to 
Africa  and  maintaining  them  in  freedom  there  was  lawful.  Charles  v. 
Hunnicutt,  5  Call  (Va.)  311;  Wade  v.  American  Colonization  Soc,  7 
Smedes  &  M.  (Miss.)  663,  45  Am.  Dec.  324.  A  state  of  slavery,  in 
which  manumission  was  wholly  prohibited,  has  never  been  known 
among  civilized  nations.  Even  when  slavery  prevailed  throughout  the 
world,  the  same  common  law  of  nations,  jus  gentium,  which  justified 
its  existence,  recognized  the  right  of  manumission  as  a  necessary  con- 
sequence.   Just.  Inst.  lib.  1,  tit.  5. 

We  fully  concur  with  the  learned  counsel  for  the  heirs  at  law  that  if 
this  trust  could  not  be  executed  according  to  the  intention  of  the  testa- 
tor without  tending  to  excite  servile  insurrections  in  other  states  of  the 
Union,  it  would  have  been  unlawful;  and  that  a  trust  which  looked 
solely  to  political  agitation  and  to  attempts  to  alter  existing  laws  could 
not  be  recognized  by  this  court  as  charitable.  But  such  does  not  appear 
to  us  ,to  be  the  necessary  or  the  reasonable  interpretation  of  this  be- 
quest. The  manner  stated  of  putting  an  end  to  slavery  is  not  by  legisla- 
tion or  political  action,  but  by  creating  a  public  sentiment,  which  rather 
points  to  moral  influence  and  voluntary  manumission.  The  means  spe- 
cified are  the  usual  means  of  public  instruction,  by  books  and  newspa- 
pers, speeches  and  lectures.  Other  means  are  left  to  the  discretion  of 
the  trustees,  but  there  is  nothing  to  indicate  that  they  are  not  designed 
to  be  of  a  kindred  nature.  Giving  to  the  bequest  that  favorable  con- 
struction to  which  all  charitable  gifts  are  entitled  the  just  inference  is 
that  lawful  means  only  are  to  be  selected,  and  that  they  are  to  be 
used  in  a  lawful  manner. 

It  was  further  objected  that  "to  create  a  public  sentiment"  was  too 
vague  and  indefinite  an  object  to  be  sustained  as  a  charitable  use.  But 
"a  public  sentiment"  on  a  moral  question  is  but  another  name  for  pub- 
lic opinion,  or  a  harmony  of  thought — idem  sentire.  The  only  case 
cited  for  the  heirs  at  law  in  support  of  this  objection  was  Browne  v. 
Yeall,  7  Ves.  50,  note,  in  which  Lord  Thurlow  held  void  a  perpetual 
trust  for  the  purchase  and  distribution  in  Great  Britain  and  its  domin- 
ions of  such  books  as  might  have  a  tendency  to  promote  the  interests 
of  virtue  and  religion  and  the  happiness  of  mankind.  But  the  correct-, 
ness  of  that  decision  was  doubted  by  Sir  William  Grant  and  Lord  El- 
don  in  Morice  v.  Bishop  of  Durham,  9  Ves.  406,  10  Ves.  534,  539;  and 
it  is  inconsistent  with  the  more  recent  authorities,  here  and  in  England. 
The  bequest  now  before  us  is  quite  as  definite  as  one  "for  the  increase 
and  improvement  of  Christian  knowledge  and  promoting  religion,"  and 
the  purchase  from  time  to  time  of  such  bibles  and  other  religious  books, 
pamphlets  and  tracts  as  the  trustees  should  think  fit  for  that  purpose, 
which  was  upheld  by  Lord  Eldon  in  Attorney  General  v.  Stepney,  10 
Ves.  22 ;  or  "to  the  cause  of  Christ,  for  the  benefit  and  promotion  of 
true  evangelical  piety  and  religion,"  through  the  agency  of  trustees,  to 
be  by  them  "appropriated  to  the  cause  of  religion  as  above  stated  to  be 
distributed  in  such  divisions  and  to  such  societies  and  religious  charita- 


284  EQUITABLE  ESTATES — USES    AND    TRUSTS 

ble  purposes  as  they  may  think  fit  and  proper,"  which  was  sustained  by 
this  court  in  Going  v.  Emery,  16  Pick.  107,  26  Am.  Dec.  645 ;  or  "for 
the  promotion  of  such  reHgious  and  charitable  enterprises  as  shall  be 
designated  by  a  majority  of  the  pastors  composing  the  Middlesex  Un- 
ion Association,"  as  in  Brown  v.  Kelsey,  2  Cush.  243 ;  or  to  be  dis- 
tributed, at  the  discretion  of  trustees,  "in  aid  of  objects  and  purposes 
of  benevolence  or  charity,  public  or  private,"  as  in  Saltonstall  v.  San- 
ders, 11  Allen,  446;  or  "for  the  cause  of  peace,"  to  be  expended  by  an 
unincorporated  society,  whose  object,  as  defined  in  its  constitution,  was 
"to  illustrate  the  inconsistency  of  war  with  Christianity,  to  show  its 
baleful  influence  on  all  the  great  interests  of  mankind,  and  to  devise 
means  for  insuring  universal  and  permanent  peace,"  as  in  Tappan  v. 
Deblois,  45  Me.  122 ;  or  to  found  "an  establishment  for  the  increase 
and  diffusion  of  knowledge  among  men ;"  or  "for  the  benefit  and  ad- 
vancement and  propagation  of  education  and  learning  in  every  part 
of  the  world,  as  far  as  circumstances  will  permit ;"  as  in  Whicker  v. 
Hume,  7  H.  L.  Cas.  124,  155,  and  President  of  U.  S.  v.  Drummond, 
there  cited.  See,  also,  McDonogh  v.  Murdoch,  15  How.  405,  414,  14  L. 
Ed.  732. 

The  bequest  itself  manifests  its  immediate  purpose  to  be  to  educate 
the  whole  people  upon  the  sin  of  a  man's  holding  his  fellowman  in 
bondage;  and  its  ultimate  object,  to  put  an  end  to  negro  slavery  in  the 
United  States ;   in  either  aspect,  a  lawful  charity. 

It  is  universally  admitted  that  trusts  for  the  promotion  of  religion 
and  education  are  charities.  Gifts  for  the  instruction  of  the  public  in 
the  cure  of  the  diseases  of  quadrupeds  or  birds  useful  to  man,  or  for 
the  prevention  of  cruelty  to  animals  (either  by  publishing  newspapers 
on  the  subject,  or  by  providing  establishments  where  killing  them  for 
the  market  might  be  attended  with  as  little  suffering  as  possible),  have 
been  held  charitable  in  England.  London  University  v.  Yarrow,  23 
Beav.  159,  1  De  Gex  &  J.  72;  Marsh  v.  Means,  3  Jur.  (N.  S.)  790; 
Tatham  v.  Drummond,  11  L.  T.  (N.  S.)  325.  To  deliver  men  from  a 
bondage  which  the  law  regards  as  contrary  to  natural  right,  humanity, 
justice  and  sound  policy,  is  surely  not  less  charitable  than  to  lessen  the 
sufferings  of  animals.  The  constitution  of  Massachusetts,  which  de- 
clares that  all  men  are  born  free  and  equal,  and  have  the  natural,  es- 
sential and  unalienable  rights  of  enjoying  and  defending  their  lives  and 
liberties,  of  acquiring,  possessing  and  protecting  property,  of  seeking 
and  obtaining  their  safety  and  happiness;  also  declares  that  a  frequent 
recurrence  to  the  fundamental  principles  of  the  constitution,  and  a  con- 
stant adherence  to  those  of  piety  and  justice,  are  absolutely  necessary 
to  preserve  the  advantages  of  liberty  and  to  maintain  a  free  govern- 
ment; that  "the  encouragement  of  arts  and  sciences,  and  all  good  liter- 
ature, tends  to  the  honor  of  God,  the  advantage  of  the  Christian  reli- 
gion, and  the  great  benefit  of  this  and  the  other  United  States  of 
America ;"  and  that  "wisdom  and  knowledge,  as  well  as  virtue,  diffus- 
ed generally  among  the  body  of  the  people,  being  necessary  for  the 


CHARITABLE    OE   PUBLIC   TRUSTS  285 

preservation  of  their  rights  and  liberties,  and  as  these  depend  on 
spreading  the  opportunities  and  advantages  of  education  in  the  various 
parts  of  the  country,  and  among  the  different  orders  of  the  people,  it 
shall  be  the  duty  of  legislatures  and  magistrates,  in  all  future  periods 
of  this  commonwealth,"  besides  cherishing  the  interests  of  literature 
and  the  sciences,  "to  countenance  and  inculcate  the  principles  of  hu- 
manity and  general  benevolence,  public  and  private  charity,"  "and  all 
social  affections  and  generous  sentiments  among  the  people."  Declara- 
tion of  Rights,  arts.  1,  18;  Const.  Mass.  c.  5.  This  bequest  directly 
tends  to  carry  out  the  principles  thus  declared  in  the  fundamental  law 
of  the  commonwealth.  And  certainly  no  kind  of  education  could  better 
accord  with  the  religion  of  Him  who  came  to  preach  deliverance  to  the 
captives,  and  taught  that  you  should  love  your  neighbor  as  yourself  and 
do  unto  others  as  you  would  that  they  should  do  unto  you. 

The  authorities  already  cited  show  that  the  peaceable  redemption  or 
manumission  of  slaves  in  any  manner  not  prohibited  by  law  is  a  charita- 
ble object.  It  falls  indeed  within  the  spirit,  and  almost  within  the  let- 
ter, of  many  clauses  in  the  statute  of  Elizabeth.  It  would  be  an  anom- 
aly in  a  system  of  law,  which  recognized  as  charitable  uses  the  relief  of 
the  poor,  the  education  and  preferment  of  orphans,  marriages  of  poor 
maids,  the  assistance  of  young  tradesmen,  handicraftsmen  and  persons 
decayed,  the  relief  of  prisoners  and  the  redemption  of  captives,  to  ex- 
clude the  deliverance  of  an  indefinite  number  of  human  beings  from  a 
condition  in  which  they  were  so  poor  as  not  even  to  own  themselves,  in 
which  their  children  could  not  be  educated,  in  which  marriages  had  no 
sanction  of  law  or  security  of  duration,  in  which  all  their  earnings 
belonged  to  another,  and  they  were  subject,  against  the  law  of  nature, 
and  without  any  crime  of  their  own,  to  such  an  arbitrary  dominion  as 
the  modern  usages  of  nations  will  not  countenance  over  captives  taken 
from  the  most  barbarous  enemy. 

III.  The  next  question  arises  upon  the  bequest  in  trust  for  the  bene- 
fit of  fugitive  slaves  who  might  from  time  to  time  escape  from  the 
slaveholding  states  of  the  Union. 

The  validity  of  this  bequest  must  be  determined  according  to  the 
law  as  it  stood  at  the  time  when  the  testator  died  and  from  which  his 
will  took  effect.  It  is  no  part  of  the  duty  of  this  court  to  maintain  the 
cori'stitutionality,  the  justice,  or  the  policy  of  the  fugitive  slave  acts,  now 
happily  repealed.  But  the  constitution  of  the  United  States,  at  the 
time  of  the  testator's  death,  declared  that  no  person  held  to  service  or 
labor  in  one  state  should  be  discharged  therefrom  by  escaping  into  an- 
other. It  may  safely  be  assumed  that,  under  such  a  constitution,  a  be- 
quest to  assist  fugitive  slaves  to  escape  from  those  to  whom  their  serv- 
ice was  thus  recognized  to  be  due  could  not  have  been  upheld  and 
enforced  as  a  lawful  charity.  The  epithets  with  which  the  testator  ac- 
companied this  bequest  show  that  he  set  his  own  ideas  of  moral  duty 
above  his  allegiance  to  his  state  or  his  country ;  and  warrant  the  con- 
jecture that  he  would  have  been  well  pleased  to  have  the  fund  applied 


2S6  EQUITABLE   ESTATES — USES    AND   TRUSTS 

in  a  manner  inconsistent  with  the  constitution  and  laws  of  the  United 
States.  But  he  has  used  no  words  to  Hmit  its  use  to  illegal  methods, 
and  has  left  his  trustees  untrammelled  as  to  the  mode  of  its  application. 

Whether  this  bequest  is  or  is  not  valid,  is  to  be  ascertained  from  a 
fair  construction  of  its  language,  in  the  light  of  the  maxims  of  interpre- 
tation stated  in  the  earlier  part  of  this  opinion,  by  wdiich  the  court  is 
bound  to  carry  into  efifect  any  charitable  bequest  in  which  can  be  seen 
a  general  intention  consistent  with  the  law,  even  if  the  particular  mode 
pointed  out  is  illegal ;  and  there  is  no  authority  to  construe  it  to  be  void 
if  it  can  be  applied  in  a  lawful  manner  consistently  with  the  intention 
of  the  testator  as  manifested  in  the  words  by  which  it  is  expressed. 
One  illustration  of  these  maxims  may  be  added  in  this  connection. 

In  Issac  V.  Gompertz,  Amb.  (2d  Ed.)  228,  note,  the  will  contained 
one  bequest  for  the  support  and  maintenance  of  a  Jews'  synagogue ; 
and  another  bequest  of  an  annuity  "to  the  gabas  of  the  said  syna- 
gogue," who  were  found,  upon  inquiry  by  a  master,  to  be  treasurers  of 
the  synagogue,  whose  office  it  was  to  collect  and  receive  the  annual  sub- 
scriptions for  the  support  of  poor  Jews  belonging  to  the  synagogue,  and 
to  apply  the  same  to  the  expenses  of  supporting  the  synagogue  and  to 
the  maintenance  of  such  poor  Jews.  This  last  bequest  was  upheld,  and 
referred  to  a  master  to  report  a  scheme,  although  the  support  of  the 
synagogue  was  adjudged  to  be  an  unlawful  use;  and  thus  a  bequest 
manifestly  intended  for  the  benefit  of  persons  professing  a  religion  not 
tolerated  by  law,  and  which  might,  according  to  its  terms,  be  applied 
either  in  an  unlawful  or  a  lawful  manner,  was  sustained  as  charitable, 
and  its  application  confined  to  the  lawful  mode. 

A  bequest  for  the  benefit  of  fugitive  slaves  is  not  necessarily  unlaw- 
ful. The  words  "relief  or  redemption  of  prisoners  and  captives"  have 
always  been  held  in  England  to  include  those  in  prison  under  condem- 
nation for  crime,  as  well  as  persons  confined  for  debt ;  and  to  support 
gifts  for  distributing  bread  and  meat  among  them  annually,  or  for  en- 
abling poor  imprisoned  debtors  to  compound  with  their  creditors. 
Duke,  Char.  Uses,  131,  156;  Attorney  General  v.  Ironmongers'  Co., 
Coop.  Prac.  Cas.  285,  290;  Attorney  General  v.  Painterstainers'  Co.,  2 
Cox.  Ch.  51 ;  Attorney  General  v.  Drapers'  Co.,  Tudor,  Char.  Trusts, 
591,  592,  4  Beav.  67;  36th  Report  of  Charity  Commissioners  to  Parlia- 
ment, pt.  6,  pp.  856-868.  It  would  be  hardly  consistent  with  charity 
or  justice  to  favor  the  relief  of  those  undergoing  punishment  for  crimes 
of  their  own  committing,  or  imprisonment  for  not  paying  debts  of  their 
own  contracting;  and  yet  prohibit  a  like  relief  to  those  who  were  in 
equal  need,  because  they  had  withdrawn  themselves  from  a  service  im- 
posed upon  them  by  local  laws  without  their  fault  or  consent. 

It  was  indeed  held  in  Thrupp  v.  Collett,  26  Beav.  125.  that  a  bequest 
to  be  applied  to  purchasing  and  procuring  the  discharge  of  persons 
committed  to  prison  for  non-payment  of  fines  under  the  game  laws  was 
not  a  lawful  charity.  But  such  persons  were  convicted  offenders 
against  the  law  of  England,  who  would  by  such  discharge  be  wholly  re- 


CHARITABLE    OR   PUBLIC   TRUSTS  287 

leased  from  punishment.  A  fugitive  slave  was  not  a  criminal  by  the 
laws  of  this  commonwealth  or  of  the  United  States. 

To  supply  sick  or  destitute  fugitive  slaves  with  food  and  clothing, 
medicine  or  shelter,  or  to  extinguish  by  purchase  the  claims  of  those 
asserting  a  right  to  their  service  and  labor  would  in  no  wise  have  tend- 
ed to  impair  the  claim  of  the  latter  or  the  operation  of  the  constitution 
and  laws  of  the  United  States ;  and  would  clearly  have  been  within  the 
terms  of  this  bequest.  If,  for  example,  the  trustees  named  in  the  will 
had  received  this  fund  from  the  executor  without  question,  and  had 
seen  fit  to  apply  it  for  the  benefit  of  fugitive  slaves  in  such  a  manner, 
they  could  not  have  been  held  liable  as  for  a  breach  of  trust. 

This  bequest  therefore,  as  well  as  the  previous  one,  being  capable  of 
being  applied  according  to  its  terms  in  a  lawful  manner  at  the  time  of 
the  testator's  death,  must,  upon  the  settled  principles  of  construction,  be 
held  a  valid  charity. 

It  is  hardly  necessary  to  remark  that  the  direction  of  the  testator  that 
his  trustees  shall  not  be  accountable  to  any  one  is  simply  void.  No  tes- 
Utor  can  obtain  for  his  bequests  that  support  and  permanence  which 
the  law  gives  to  public  charities  only,  and  at  the  same  time  deprive  the 
beneficiaries  and  the  public  of  the  safeguards  which  the  law  provides 
for  their  due  and  lawful  administration. 

As  the  trustees  named  in  the  will  are  not  a  corporation  established 
by  law,  and  these  two  bequests  are  unlimited  in  duration,  and  by  their 
terms  might  cover  an  illegal  as  well  as  a  legal  appropriation,  it  is  the 
duty  of  the  court,  before  ordering  the  funds  to  be  paid  to  the  trustees,, 
to  refer  the  case  to  a  master  to  settle  a  scheme  for  their  application  in 
a  lawful  manner.  Isaac  v.  Gompertz,  Amb.  228,  note;  Attorney  Gen- 
eral v.  Stepney,  10  Ves.  22;   Boyle,  Char.  100,  217. 

IV.  It  is  quite  clear  that  the  bequest  in  trust  to  be  expended  "to  se- 
cure the  passage  of  laws  granting  women,  whether  married  or  unmar- 
ried, the  right  to  vote,  to  hold  office,  to  hold,  manage  and  devise  prop-, 
erty,  and  all  other  civil  rights  enjoyed  by  men,"  cannot  be  sustained  as 
a  charity. 

No  precedent  has  been  cited  in  its  support.  This  bequest  differs 
from  the  others  in  aiming  directly  and  exclusively  to  change  the  laws ; 
and  its  object  cannot  be  accomplished  without  changing  the  constitution 
also.  Whether  such  an  alteration  of  the  existing  laws  and  frame  of 
government  would  be  wise  and  desirable  is  a  question  upon  which  we 
cannot,  sitting  in  a  judicial  capacity,  properly  express  any  opinion. 
Our  duty  is  limited  to  expounding  the  laws  as  they  stand.  And  those 
laws  do  not  recognize  the  purpose  of  overthrowing  or  changing  them, 
in  whole  or  in  part,  as  a  charitable  use.  This  bequest  therefore,  not 
being  for  a  charitable  purpose  nor  for  the  benefit  of  any  particular  per- 
s_ons,  and  being  unrestricted  in  point  of  time,  is  inoperative  and  void. 

For  the_same  reason,  the  gift  to  the  same  object  of  one  third  of  the 
residue  of  the  testator's  estate  after  the  death  of  his  daughter  Mrs.  Ed- 


288  EQUITABLE   ESTATES — USES    AND    TRUSTS 

dy  and  her  daughter  Mrs.  Bacon,  is  also  invaHd,  and  will  go  to  his  heirs 
"atlaw  as  a  resulting  trust. 

It  is  proper  to  add  that  the  conclusion  of  the  court  upon  this  point,  as 
well  as  upon  the  gift  to  create  a  public  sentiment  which  would  put  an 
end  to  negro  slavery  in  the  United  States,  had  the  concurrence  of  the 
late  Mr.  Justice  Dewey,  whose  judicial  experience  and  large  acquaint- 
ance with  the  law  of  charitable  uses  give  great  weight  to  his  opinion, 
and  whose  lamented  death,  while  this  case  has  been  under  advisement, 
has  deprived  us  of  his  assistance  in  cletermining  the  other  questions  in 
controversy. 

V.  The  validity  of  the  other  residuary  bequests  and  devises  de- 
pends upon  the  law  of  perpetuities  as  applied  to  private  trusts.  The 
principles  of  this  branch  of  the  law  have  been  so  fully  considered  by 
the  court  in  recent  cases  as  to  require  no  extended  statement. 

The  general  rule  is  that  if  any  estate,  legal  or  equitable,  is  given  by 
deed  or  will  to  any  person  in  the  first  instance,  and  then  over  to  an- 
other person,  or  even  to  a  public  charity,  upon  the  happening  of  a 
contingency  which  may  by  possibility  not  take  place  within  a  life  or 
lives  in  being  (treating  a  child  in  its  mother's  womb  as  in  being)  and 
twenty-one  years  afterwards,  the  gift  over  is  void,  as  tending  to  create 
a  perpetuity  by  making  the  estate  inalienable;  for  the  title  of  those 
taking  the  previous  interests  would  not  be  perfect,  and  until  the  hap- 
pening of  the  contingency  it  could  not  be  ascertained  who  were  enti- 
tled. Brattle  Square  Church  v.  Grant,  3  Gray,  142,  63  Am.  Dec.  725 ; 
Odell  v.  Odell,  10  Allen,  5,  7.  If  therefore  the  gift  over  is  limited 
upon  a  single  event  which  may  or  may  not  happen  within  the  pre- 
scribed period,  it  is  void,  and  cannot  be  made  good  by  the  actual  hap- 
pening of  the  event  within  that  period. 

But  if  the  testator  distinctly  makes  his  gift  over  to  depend  upon 
what  is  sometimes  called  an  alternative  contingency,  or  upon  either 
of  two  contingencies,  one  of  which  may  be  too  remote  and  the  other 
cannot  be,  its  validity  depends  upon  the  event;  or,  in  other  words, 
if  he  gives  the  estate  over  on  one  contingency  which  must  happen,  if 
at  all,  within  the  limit  of  the  rule,  and  that  contingency  does  happen, 
the  validity  of  the  distinct  gift  over  in  that  event  will  not  be  affected 
by  the  consideration  that  upon  a  different  contingency,  which  might  or 
might  not  happen  within  the  lawful  limit,  he  makes  a  disposition  of 
his  estate,  which  would  be  void  for  remoteness.  The  authorities  upon 
this  point  are  conclusive.  Longhead  v.  Phelps,  2  W.  Bl.  704;  Sug- 
den  and  Preston,  arguendo,  in  Beard  v.  Westcott,  5  Barn.  &  Aid.  809, 
813,  814;  Minter  v.  Wraith,  13  Sim.  52;  Evers  v.  Challis,  7  H.  L. 
Cas.  531;  Armstrong  v.  Armstrong,  14  B.  Mon.  (Ky.)  333;  1  Jarm. 
Wills,  244;   Lewis,  Perp.  c.  21 ;   2  Spence,  Eq.  Jur.  125,  126. 

By  the  ninth  and  tenth  articles  of  the  will,  the  income  of  one  third 
of  the  residue  of  the  testator's  estate,  real  and  personal,  is  to  be 
paid  to  his  son  James  and  to  his  daughter  Mrs.  Palmer,  respectively, 


CHARITABLE    OR   PUBLIC   TRUSTS  289 

during  life.  Each  of  these  articles  contains  a  distinct  direction  that, 
in  case  such  son  or  daughter  shall  die  leaving  no  child  surviving,  the 
principal  of  his  or  her  share  shall  be  paid  and  conveyed  to  the  board 
of  trustees  named  in  the  fourth  article,  to  be  expended  for  the  intent 
and  purpose  therein  directed.  As  the  first  tenant  for  life  in  each  be- 
quest is  living  at  the  death  of  the  testator,  the  event  of  such  tenant's 
dying,  leaving  no  child  then  living,  must  happen  within  the  period  of 
a  life  in  being,  if  at  all;  and,  if  it  does  happen,  the  gift  over  to  the 
charity  will  be  valid.  Neither  James  Jackson  nor  Mrs.  Palmer  there- 
fore is  entitled  to  a  present  equitable  estate  in  fee.  But  as  Jaiiies, 
though  now  unmarried,  may  marry  and  have  children  who  survive 
him,  and  as  Mrs.  Palmer's  children  may  survive  her,  in  either  of  which 

cases  half  of  the  income  of  the  share  would  by  ttie  will  go  to  such 

children  during  their  lives  and  the  bequest  over  to  the  charity  be  too. 
remote,  the  validity  and  effect  of  that  bequest  over  cannot  be  now..(ie.- 
termined.  If  the  contingency  upon  which  it  is  valid  should  hereafter 
occur,  namely,  the  death  of  the  testator's  son  or  daughter,  respectively, 
jeavihg"lro  children  surviving,  the  whole  remainder  of  the  share  will 
then..g.o  to  the  charity  established  by  the  fourth  article,  and  be  paid, 
after. the  settlement  of  a  scheme  for  its  lawful  application,  to  the  trus- 
tees therein  named. 

"^I-  By  the  thirteenth  amendment  of  the  constitution  of  the  United 
States,  adopted  since  the  earlier  arguments  of  this  case,  it  is  declared 
fhat  "neither  slavery  nor  involuntary  servitude,  except  as  a  punish- 
merrrTor~cnrne  whereof  the  party  shall  have  been  duly  convicted,  shall  \ 
^st  withiri'The  United  States  or  any  place  subject  to  their  jurisdic- 
,tion/^__The  effect  of  this  amendment  upon  the  charitable  bequests  of 
Francis  Jaclcsbn  is  the  remaining  question  to  be  determined ;  and  this 
"requires  aToh'slderation  of  the  nature  and  proper_limi,tSL  of  the._doc- 
trine  of  cypres. 


It  iscomenaecTtor  the  heirs  at  law,  that  the  power  of  the  English 
chancellor,  when  a  charitable  trust  cannot  be  administered  according 
to  its  terms,  to  execute  it  so  as  to  carry  out  the  donor's  intention  as 
nearly  as  possible — cy  pres — is  derived  from  the  royal  prerogative  or 
St.  43  Eliz.  and  is  not  an  exercise  of  judicial  authority;  that,  whether 
this  power  is  prerogative  or  judicial,  it  cannot,  or,  if  it  can,  should 
not,  be  exercised  by  this  court ;  and  that  the  doctrine  of  cy  pres,  even 
as  administered  in  the  English  chancery,  would  not  sustain  these  char- 
itable bequests  since  slavery  has  been  abolished. 

Much  confusion  of  ideas  has  arisen  from  the  use  of  the  term  "cv 
pres"  in  the  books  to  describe  two  distinct  powers  exercised  by  the 
English  chancellor  in  charity  cases,  the  one  under  the  sign  manual 
of  the  crown,  the  other  under  the  general  jurisdiction  in  equity;  as 
wellas  to  designate  the  rule  of  construction  which  has  sometimes  been 
applied  to  executory  devises  or  powers  of  appointment  to  individuals, 
Bubd.Cas.Real  Prop. — 19 


290  EQUITABLE   ESTATES — USES    AND    TRUSTS 

in  order  to  avoid  the  objection  of  remoteness.  It  \v,as  of  this  last, 
and  not  of  any  doctrine  peculiar  to  charities,  that  Lord  Keriyon  said, 
"The  doctrine  of  cy  pres  goes  to  the  utmost  verge  of  the  law,  and 
we  must  take  care  that  it  does  not  run  wild ;"  and  Lord  Eldon,  "It  is 
not  proper  to  go  one  step  farther."  Brudenell  v.  Elwes,  1  East,  451, 
7  Ves.  390;  1  Jarm.  Wills,  261-263;  Sugd.  Powers,  c.  9,  §  9;  Coster 
V.  Lorillard,  14  Wend.  (N.  Y.)  309,  348. 

.Xhfi-pxiucipal,  if  not  the  only,  cases  in  which  the  disposition  of  a 
charity  is  held  to  be  in  the  crown  by  sign  manual,  are  of  two  classes ; 
the  first,  of  bequests  to  particular  uses  charitable  in  their  nature,  but 
illegal,  as  for  a  form  of  religion  not  tolerated  by  law ;  and  the  sec- 
ond, of  gifts  of  property  to  charity  generally,  without  any  trust  inter- 
posed, and  in  which  either  no  appointment  is  provided  for,  or  the 
power  of  appointment  is  delegated  to  persons  who  die  without  exer- 
cising it. 

It  is  by  the  sign  manual  and  in  cases  of  the  first  class,  that  the  ar- 
bitrary dispositions  have  been  made,  which  were  so  justly  condemned 
by  Lord  Thurlow  in  Moggridge  v.  Thackwell,  1  Ves.  Jr.  469,  and  Sir 
William  Grant  in  Gary  v.  Abbot,  7  Ves.  494,  495 ;  and  which,  through 
want  of  due  discrimination,  have  brought  so  much  discredit  upon  the 
whole  doctrine  of  cy  pres.  Such  was  the  case  of  Attorney  General 
V.  Baxter,  in  which  a  bequest  to  Mr.  Baxter  to  be  distributed  by  him 
among  sixty  pious  ejected  ministers,  (not,  as  the  testator  declared,  for 
the  sake  of  their  nonconformity,  but  because  he  knew  many  of  them 
to  be  pious  and  good  men  and  in  great  want,)  was  held  to  be  void, 
and  given  under  the  sign  manual  to  Chelsea  College ;  but  the  decree 
was  afterwards  reversed,  upon  the  ground  that  this  was  really  a 
legacy  to  sixty  individuals  to  be  named.  1  Vern.  248;  2  Vern.  105; 
1  Eq.  Gas.  Abr.  96;  7  Ves.  76.  Such  also  was  the  case  of  Da  Costa 
V,  De  Pas,  in  which  a  gift  for  establishing  a  jesuba  or  assembly  for 
reading  the  Jewish  law  was  applied  to  the  support  of  a  Christian 
chapel  at  a  foundling  hospital.  Amb.  228;  2  Swanst.  489,  note;  1 
Dickens,  258;    7  Ves.  76,  81. 

This  power  of  disposal  by  the  sign  manuaj  of  the  crown  in  direct 
opposition  to  llic  declared  intention  of  tlie  testator,  whether  it  is  to 
be  deemed  to  have  belonged  to  the  king  as  head  of  the  church  as  well 
as  of  the  state,  "intrusted  and  empowered  to  see  that  nothing  be  done 
to  the  disherison  of  the  crown  or  the  propagation  of  a  false  religion" 
(Rex  V.  Portington,  1  Salk.  162,  1  Eq.  Gas.  Abr.  96) ;  or  to  have 
been  derived  from  the  power  exercised  by  the  Roman  emperor,  who 
was  sovereign  legislator  as  well  as  supreme  interpreter  of  the  laws 
(Dig.  33,  2,  17;  50,  8,  4;  Code,  lib.  1,  tit.  2,  c.  19;  Id.,  tit.  14,  c.  12); 
/is  clearly  a  prerogative  and  not  a  judicial  power,  and  could  not  be 
^exercised  by  this  court;  and  it  is  difficult  to  see  liow  it  couIHoe  held 
to  exist  at  all  in  a  republic,  in  which  charitable  bequests  have  never 
been  forfeited  to  the  use  or  submitted  to  the  disposition  of  the  govern- 


CHARITABLE    OR   PUBLIC    TRUSTS  291 

ment,  because  superstitious  or  illegal.  4  Dane,  Abr.  239;  Gass  v. 
Wilhite,  2  Dana  (Ky.)  176,  26  Am.  Dec.  446;  Methodist  Church  v. 
Remington,  1  Watts  (Pa.)  226,  26  Am.  Dec.  61. 

The_second  class_pf  bequests  which  are  disposed  of  by  the  king's 
sign  manual  is  of  gifts  to  chdlrity  generally,  with  no  uses  specified, 
no  trust  interposed,  and  either  nX)  provision  made  for  an  appointment, 
or  the  power  of  appointment  delegated  to  particular  persons  who  die 
without  exercising  it.  Boyle,  Cha|-.  238,  239 ;  Attorney  General  v, 
Syderfen,  1  Vern.  224,  1  Eq.  Ca^w  Abr.  96;  Attorney  General  v. 
Fletcher,  5  Law  J.  Ch.  (N.  S.)  75.  rfajg  too  is  not  a  judicial  power  of 
expounding  and  carrying  out  the  testator's  intention,  but  a  prerogative 

"power  of  ordaining  what  the  testator  has  failed  to  express.  No  in- 
staiice  is  reported,  or  has  been  discovered  in  the  thorough  investiga- 
tions of  the  subject,  of  an  exercise  of  this  power  in  England  before 
the  reign  of  Charles  II.  Moggridge  v.  Thackwell,  7  Ves.  69-81 ; 
Dwight's  Argument  in  the  Rose  Will  Case,  272.  It  has  never,  so, 
far  as  we  know,  been  introduced  into  the  practice  of  any  court  in. 
this  country;  and,  if  it  exists  anywhere  here,  it  is  in  the  legislature  of 
tHe  commonwealth  as  succeeding  to  the  powers  of  the  king  as  parens 
patriae.  4  Kent,  Comm.  508,  note;  Fontain  v.  Ravenel,  17  How.  369, 
^,  15  L.  Ed.  80;  Moore  v.  Moore,  4  Dana  (Ky.)  365,  366,  29  Am. 
Dec.  417;  Witman  v.  Lex,  17  Serg.  &  R.  (Pa.)  93,  17  Am.  Dec.  644; 
Attorney  General  v.  Jolly,  1  Rich.  Eq.  (S.  C.)  108,  42  Am.  Dec.  349 ; 
Dickson  v.  Montgomery,  1  Swan  (Tenn.)  348;  Lepage  v.  Macnamara, 
5  Iowa,  146;  Bartlet  v.  King,  12  Mass.  545,  7  Am.  Dec.  99;  Sohier 
V.  Massachusetts  General  Hospital,  3  Cush.  496,  497.  It  certainly 
cannot  be  exercised  by  the  judiciary  of  a  state  whose  constitution 
declares  that  "the  judicial  department  shall  never  exercise  the  legis- 
lative and  executive  powers,  or  either  of  them ;   to  the  end  it  may  be 

^a^overnment  of  laws  and  not  of  men."  Declaration  of  Rights,  art.  30. 
"The  jurisdiction  of  the  court  of  chancery  to  superintend  the  adminis- 
tration and  decree  the  performance  of  gifts  to  trustees  for  charita- 
ble uses  of  a  kind  stated  in  the  gift  stands  upon  different  grounds ; 
and  is  part  of  its  equity  jurisdiction  over  trusts,  which  is  shown  by, 
abundant  evidence  to  have  existed  before  the  passage  of  the  statute 
of  charitable  uses.  Sir  Francis  Moore  records  a  case  in  which  a  man 
sold  land  to  another  upon  confidence  to  perform  a  charitable  use,  which 
the  grantor  declared  by  his  last  will  that  the  grantee  should  perform ; 
"the  bargain  was  never  enrolled,  and  yet  the  lord  chancellor  decreed 
that  the  heir  should  sell  the  land  to  be  disposed  according  to  the  lim- 
itation of  the  use ;  and  this  decree  was  made  the  24th  of  Queen  Eliza- 
beth, before  the  statute  of  charitable  uses,  and  this  decree  was  made 
upon  ordinary  and  judicial  equity  in  chancery."  Symon's  Case,  Duke, 
Char.  Uses,  163.  About  the  same  time  the  court  of  chancery  enter- 
tained a  suit  between  two  parties,  each  claiming  to  be  trustee,  to  de- 
termine how  bequests  for  the  weekly  relief  of  the  poor  of  certain  towns, 


292  EQUITABLE   ESTATES — USES    AND    TRUSTS 

for  the  yearly  preferment  of  poor  children  to  be  apprentices,  and  for 
the  curing  of  divers  diseased  people  lying  by  the  highway's  side,  should 
be  "employed  and  bestowed  according  to  the  said  will."  Reade  v. 
Silles  (27  Eliz.)  Act.  Can.  559.  A  decree  in  16  Eliz.,  confirming  a 
report  of  the  master  of  the  rolls  and  others  to  whom  a  suit  for  en- 
forcing a  charitable  trust  founded  by  will  had  been  referred,  is  cited 
in  1  Spence,  Eq.  Jur.  588,  note.  For  years  before  St.  43  Eliz.,  or 
the  similar  act  of  39  Eliz.,  suits  in  equity  by  some  in  behalf  of  all 
of  the  inhabitants  of  a  parish  were  maintained  to  establish  and  en- 
force bequests  for  schools,  alms,  or  other  charitable  purposes  for  the 
benefit  of  the  parish,  which  would  have  been  too  indefinite  to  be  en- 
forced as  private  trusts.  Parker  v.  Browne  (12  Eliz.)  1  Cal.  Pro.  Ch. 
81,  1  Mylne  &  K.  389,  390;  Dwight,  Char.  Cas.  33,  34,  in  which  the 
devise  was  in  trust  to  a  corporation  incapable  at  law  of  taking.  Par- 
rot V.  Pawlet  (21  Eliz.)  Cary,  47;  Elmer  v.  Scot  (24  Eliz.)  Cho.  Cas. 
Ch.  155;  Matthew  v.  Marow  (32-34  Eliz.);  and  Hensman  v.  Hack- 
ney (38  Eliz.)  Dwight,  Char.  Cas.  65,  77,  in  which  the  decrees  ap- 
proved schemes  settled  by  masters  in  chancery.  Many  other  examples 
are  collected  in  the  able  and  learned  arguments,  as  separately  printed 
in  full,  of  Mr.  Binney  in  the  Case  of  Girard's  Will,  and  of  Mr.  Dwight 
in  the  Rose  Will  Case.  And  the  existence  of  such  a  jurisdiction  an- 
terior to  and  independent  of  the  statute  is  now  generally  admitted. 
Mdal  v.  Girard,  2  How.  194-196,  11  L.  Ed.  205,  and  cases  cited; 
Perin  v.  Carey,  24  How.  501,  16  L.  Ed.  701;  Magill  v.  Brown, 
Brightly,  N.  P.  346;  2  Kent,  Comm.  286-288,  and  note;  Burbank  v. 
Whitney,  24  Pick.  152,  153,  35  Am.  Dec.  312;  Preachers'  Aid  Soc.  v. 
Rich,  45  Me.  559 ;  Derby  v.  Derby,  4  R,  I.  436 ;  Landis  v.  Wooden, 
1  Ohio  St.  160,  59  Am.  Dec.  615;  Chambers  v.  St.  Louis,  29  Mo.  543; 
1  Spence,  Eq.  Jur.  588;   Tudor,  Char.  Trusts,  102,  103. 

The  theory  that  St.  43  Eliz.  enlarged  the  discretion  of  the  chancel- 
lorjb  depart  from  thfexpressed  intention  of  the  founder  of  a  charity  _ 
IS  refuted  by  the  words  of  the  statute  itself.  After  reciting  that  many 
gifts  and  appointments  for  the  charitable  purposes  therein  named  "have 
not  been  employed  according  to  the  charitable  intent  of  the  givers 
and  founders  thereof,  by  reason  of  frauds,  breaches  of  trust,  and 
negligence  in  those  that  should  pay,  deliver  and  employ  the  same;" 
it  then,  for  redress  and  remedy  thereof,  authorizes  the  lord  chancellor 
or  lord  keeper  to  make  such  decrees  that  the  property  "may  be  duly 
and  faithfully  employed  to  and  for  such  of  the  charitable  uses  and  in- 
tents before  rehearsed  respectively  for  which  they  were  given,  limited, 
assigned  or  appointed  by  the  donors  and  founders  thereof ;"  which 
decrees,  "not  being  contrary  or  repugnant  to  the  orders,  statutes  or 
decrees  of  the  donors  or  founders,"  shall  "stand  firm  and  good,  accord- 
ing to  the  tenor  and  purpose  thereof,  and  shall  be  executed  accord- 
ingly," until  altered  by  the  lord  chancellor  or  lord  keeper  upon  com- 
olaint  by  any  party  aggrieved ;    and  upon  such  complaint  the  chan- 


CHARITABLE    OR   PUBLIC    TRUSTS  293 

cellor  or  keeper  may  "by  such  course  as  to  their  wisdoms  shall  seem 
meetest,  the  circumstances  of  the  case  considered,  proceed  to  the  ex- 
amination, hearing  and  determining  thereof ;  and  upon  hearing  thereof 
shall  and  may  annul,  diminish,  alter  or  enlarge"  the  decrees  of  the 
commissioners  as  "shall  be  thought  to  stand  with  equity  and  good  con- 
science, according  to  the  true  intent  and  meaning  of  the  donors  and 
founders  thereof."  These  last  qualifications  are  specially  marked  by 
Lord  Coke,  who  was  attorney  general  at  the  passage  of  the  statute 
and  for  some  time  before  and  after,  and  who  adds,  jDy  way  of  note 
to  the  final  clause,  "This  is  the  lapis  ductitius,  whereby  the  commis- 
sioners and  chancellors  must  institute  their  course."  2  Inst.  712.  See, 
also,  Duke,  Char.  Uses,  11,  156,  169,  372,  619. 

In  cases  of  bequests  to  trustees  for  charitable  uses,  the  nature  of 
which  is  described  in  the  will,  the  chancellor  acts  in  his  equity  juris- 
diction over  trusts ;  and  the  prerogative  of  the  king  finds  its  appro- 
priate exercise  through  his  attorney  general  in  bringing  the  case  before 
the  court  of  chancery  for  a  judicial  determination.  This  has  been 
well  explained  by  Lord  Eldon.  "It  is  the  duty  of  a  court  of  equity, 
a  main  part,  originally  almost  the  whole,  of  its  jurisdiction,  to  ad- 
minister trusts ;  to  protect  not  the  visible  owner,  who  alone  can  pro- 
ceed at  law,  but  the  individual  equitably,  though  not  legally,  entitled. 
From  this  principle  has  arisen  the  practice  of  administering  the  trust 
of  a  public  charity;  persons  possessed  of  funds  appropriated  to  such 
purposes  are  within  the  general  rule;  but,  no  one  being  entitled  to 
an  immediate  and  peculiar  interest  to  prefer  a  complaint,  who  is  to 
compel  the  performance  of  these  obligations,  and  to  enforce  their 
responsibility  ?  It  is  the  duty  of  the  king,  as  parens  patriae,  to  protect 
property  devoted  to  charitable  uses;  and  that  duty  is  executed  by  the 
officer  who  represents  the  crown  for  all  forensic  purposes.  On  this 
foundation  rests  the  right  of  the  attorney  general  in  such  cases  to  ob- 
tain by  information  the  interposition  of  a  court  of  equity."  Attorney 
General  v.  Brown,  1  Swanst.  291,  1  Wils.  354.  To  the  like  efifect 
are  the  opinions  of  Lord  Redesdale  in  Attorney  General  v.  Mayor, 
etc.,  of  Dublin,  1  Bligh  (N.  S.)  347,  348,  and  Corporation  of  Ludlow 
v.  Greenhouse,  Id.  48,  62;  of  Lord  Keeper  Bridgman  in  Attorney 
General  v.  Newman,  1  Ch.  Qas.  158;  of  Sir  Joseph  Jekyll  in  Eyre  v. 
Shaftsbury,  2  P.  Wms.  119;  and  of  Lord  Hardwicke  in  Attorney 
General  v.  Middleton,  2  Ves.  Sr.  328, — which  also  state  that  the  juris- 
diction of  the  court  of  chancery  over  charities  was  exercised  on  such 
informations  before  St.  43  Eliz.  See,  also,  Attorney  General  v.  Car- 
^roll,  Act.  Can.  729;  Dwight's  Argument  in  the  Rose  Will  Case,  259- 
268.  This  duty  of  maintaining  the  rights  of  the  public,  and  of  a  num- 
ber  of  pcrsiin^  too  indefinite  to  vindicate  their  own,  has  vested  irTtM" 
commonwealth,  and  is  exercised  here,  as  in  England,  through  the  at- 
torney  gfnpral      Going  v.  Emery,   16  Pick.   119,  26  Am.  Dec.  645 ; 


jorney  ^ 
County  ^ 


ounty  Attorney  v.  May,  5  Cush.  338-340;   Gen.  St.  c.  14,  §  20.     It 


1 


294  EQUITABLE  ESTATES USES    AXD    TRUSTS 

is  upon  this  ground  that,  in  a  suit  instituted  by  the  trustees  of  a  charity 
to  obtain  the  instructions  of  the  court,  the  attorney  general  sh^ild  ho., 
made  a  ^arty  defendant,  as  he  has  been  by  order  of  the  court Jn-tliis 
"case.  Harvard  College  v.  Society  for  Promoting  Theological  Educa- 
tion, 3  Gray,  280;  Tudor,  Char.  Trusts,  161,  162.^  The  power  of  the 
king  or  commonwealth,  thus  exercised,  is  simply  to  preselit  "the  ques- 
'tidntb'a'cbuWof  justice,  not  to  control  or  direct  its  judicial  action. 

A  charity,  being  a  trust  in  the  support  and  execution  of  which  the 
whole  public  is  concerned,  and  which  is  therefore  allow^ed  by  the  law  to 
be  perpetual,  deserves  and  often  requires  the  exercise  of  a  larger  dis- 
cretion by  the  court  of  chancery  than  a  mere  private  trust ;  for  with- 
out a  large  discretionary  power,  in  carrying  out  the  general  intent  of 
the  donor,  to  vary  the  details  of  administration,  and  even  the  mode  of 
application,  many  charities  would  fail  by  change  of  circumstances  and 
the  happening  of  contingencies  which  no  human  foresight  could  pro- 
vide against ;  and  the  probabilities  of  such  failure  would  increase  with 
the  lapse  of  time  and  the  remoteness  of  the  heirs  from  the  original 
donor  who  had  in  a  clear  and  lawful  manner  manifested  his  will  to  di- 
vert his  estate  from  his  heirs  for  the  benefit  of  public  charities. 

It  is_  accordingly  well  settled  by  decisions  of  the  highest  authority^ 
that  when  a  gift  is  made  to  trustees  for  a  charitable  purpose,  the  gen- 
eral nature  of  which  is  pointed  out^  and  which  is  lawful  and  valid  at- 
'the  time  of  the  death  of  the  testator,  and  no  intention  is  expressed  to^ 

id  after- 
testator  1)e- 
'conies  impracticable,  or  by  change  of  law  becomes  illegal,  the  fund, 
having  once  vested  in  the  charity,  does  not  go  to  the  heirs  at  law  as  a 
resulting  trust,  but  is  to  be  applied  by  the  court  of  chancery,  in  the  ex^ 
ercise  of  its  jurisdiction  in  equity,  as  near  the  testator's  particular  di- 
rections as  possible,  to  carry  out  his  general  charitable  intent.  ,  In  all 
the  cases  of  charities  which  have  been  administered  in  the  English 
courts  of  chancery  without  the  aid  of  the  sign  manual,  the  prerogative 
of  the  king  acting  through  the  chancellor  has  not  been  alluded  to,  ex- 
cept for  the  purpose  of  distinguishing  it  from  the  power  exercised  by 
the  court  in  its  inherent  equitable  jurisdiction  with  the  assistance  of  its 
masters  in  chancery. 

At  the  time  of  the  settlement  of  the  Massachusetts  Colony,  this  pow- 
er was  most  freely  exercised  by  the  court  of  chancery,  cither  on  infor- 
mation by  the  attorney  general,  or  on  proceedings  by  commission  under 
the  statute  of  charitable  uses.  Attorney  General  v.  Warwick  (1615, 
1638)  Dwight,  Char.  Cas.  140,  141,  West,  Ch.  60,  62;  Bloomfield  v. 
Stowemarket  (1619)  Duke,  Char.  Uses,  644.  In  the  last  case,  lands 
had  been  given  before  the  Reformation  to  be  sold,  and  the  proceeds 
applied,  one  half  to  the  making  of  a  highway  from  the  town  in  which 
the  lands  were,  one  fourth  to  the  repair  of  a  church  in  that  town,  and 
the  other  fourth  to  the  priest  of  the  church  to  say  prayers  for  the  souls 
of  the  donor  and  others;  and  Lord  Bacon  decreed  the  establishment  of 


;  the  time  ot  the  death  ot  the  testator,  and  no  mtention  is  expr€ 
A  ./y/  limit  it  to  a  particular  institution  or  mode  of  application,  an( 
W  Jy'     wardsfeither  by  change  of  circumstances  the  scheme  of  the  test; 


CHARITABLE    OR   PUBLIC   TRUSTS  295 

the  uses  for  making  the  highway  and  repairing  the  church,  and  directed 
the  remaining  fourth  (which  could  not,  by  reason  of  the  change  in 
rehgion,  be  applied  as  directed  by  the  donor)  to  be  divided  between  the 
poor  of  the  same  town,  and  the  poor  of  the  town  where  the  donor  in- 
habited. 

In  the  Case  of  Baliol  College,  this  doctrine  was  enforced  by  succes- 
sive decrees  of  the  greatest  English  chancellors  between  the  English 
Revolution  and  our  own,  which  have  been  recently  confirmed  by  the 
unanimous  decision  of  the  house  of  lords.  Attorney  General  v.  Guise, 
2  Vern.  166 ;  Attorney  General  v.  Baliol  College,  9  Mod.  407 ;  Attorney 
General  v.  Glasgow  College,  2  Colly.  665,  1  H.  L.  Cas.  800.  The  case 
is  of  such  importance  and  reported  at  different  stages  in  so  many  books 
and  at  such  length,  that  it  may  be  well  to  state  it.  John  Snell,  an  Epis- 
copalian, who  made  his  last  will  and  died  in  1679,  while  the  form  of 
religion  established  by  law  in  Scotland  as  well  as  in  England  was  Epis- 
copal, gave  lands  in  trust  to  apply  the  income  for  the  maintenance  and 
education  at  the  university  of  Oxford  of  Scotchmen  to  be  designated 
by  the  vice  chancellor  of  that  university  and  the  heads  of  certain  col- 
leges therein,  and  who  should,  upon  their  admission,  give  security  to 
enter  into  holy  orders  and  to  be  sent  into  Scotland  and  there  remain. 
After  the  Revolution  of  1688,  Presbyterianism  was  reestablished  in 
Scotland  by  act  of  parliament ;  and  in  16^  an  information  was  filed  by 
the  attorney  general,  at  the  relation  of  the  vice  chancellor  and  heads  of 
colleges  named  in  the  will,  against  the  testator's  heiress  at  law,  suggest- 
ing a  pretence  by  her  that  as  Episcopacy  and  Prelacy  had  been  abolish- 
ed in  Scotland,  and  the  Presbyterian  form  of  worship  established  in- 
stead, the  testator's  intentions  could  not  be  carried  into  effect,  the  de- 
vise became  void,  and  the  property  reverted  to  her.  But  the  lords  com- 
missioners of  the  great  seal,  by  a  decree  passed  in  1692,  established  the 
devise  against  her,  ordered  an  account,  and  reserved  all  directions  for 
the  establishment  of  the  charity.  2  Vern.  267,  note ;  2  Colly.  665-670, 
1  H.  L.  Cas.  802-804,  820,  822.  In  1693  the  cause  came  on  for.further 
directions  before  Lord  Keeper  Somers,  who,  acting  upon  the  doctrine 
that  it  was  within  the  province  of  a  court  of  equity  to  administer  the 
trust  upon  the  principle  of  cy  pres,  ordered  the  estate  to  be  conveyed  to 
the  six  senior  fellows  of  Baliol  College,  one  of  the  colleges  named  in 
the  will,  to  maintain  a  certain  number  of  Scotch  scholars  at  that  college, 
and,  in  consideration  of  the  privileges  enjoyed  by  such  scholars,  to  ap- 
ply the  surplus  income  to  its  library;  and  this  decree  was  made  subject 
to  such  alteration  and  disposition  as  the  court  should  from  time  to  time 
make,  upon  the  application  of  any  person  concerned,  for  the  better 
and  more  effectual  execution  of  the  trust,  as  near  as  could  be  to  the 
testator's  will  and  intentions.  2  Vern.  267,  note;  2  Colly.  670,  671,  1 
H.  L.  Cas.  804,  805,  824.  In  1744  Lord  Hardwicke,  in  the  execution 
of  the  directions  in  the  decree  of  Lord  Somers,  referred  the  cause  to  a 
master  to  approve  of  a  scheme  "for  the  better  establishment  and  regvila- 
tion  of  the  charity,  and  carrying  the  same  into  eft'ect  for  the  future  as 


296  EQUITABLE   ESTATES — USES    AND    TRUSTS 

near  to  the  will  and  intention  of  the  testator  as  the  alteration  of  circum- 
stances since  the  making  of  the  will  would  admit;"  and  upon  his  re- 
port, and  against  the  exceptions  of  the  heads  of  colleges  in  Oxford, 
confirmed  a  scheme  which  did  not  impose  any  condition  of  the  scholars 
taking  holy  orders — thus  carrying  out  the  general  intention  of  the  trust 
so  far  as  to  educate  Scotch  scholars  at  Oxford,  although  the  testator's 
ultimate  object  that  they  should  be  educated  in  the  Episcopal  form 
of  church  government  to  take  part  in  the  established  religion  in  Scot- 
land could  not,  by  reason  of  the  change  of  law  since  his  death,  be  effect- 
ed. 9  Mod.  407;  1  H.L.  Cas.  805,  806,  825-827.  In  1759  Lord  Keep- 
er Henley  (afterward  Lord  Northington)  varied  the  scheme  in  other 
particulars,  but  declined  to  vary  it  in  this;  and  further  orders  were 
afterwards  made  in  chancery  as  the  revenues  increased.  2  Colly.  672- 
674,  1  H.  L.  Cas.  806,  807,  825,  826 ;  3  Ves.  650,  note.  Upon  a  new 
information  filed  at  the  relation  of  some  Scotch  Episcopalians,  the 
house  of  lords  in  1848,  reversing  an  order  of  Vice  Chancellor  Knight 
Bruce,  held  that  the  charity  must  continue  to  be  administered  according 
to  the  earlier  decrees.    1  H.  L.  Cas.  800. 

In  another  case,  Queen  Elizabeth,  by  letters  patent,  established  a 
hospital  for  forty  lepers,  and  made  the  inmates  a  corporation.  After 
leprosy  had  become  almost  extinct  in  England,  and  the  members  of  the 
corporation  reduced  to  three.^an  information  was  filed,  alleging  that  the 
corporation  was  dissolved,  and  praying  for  a  new  application  of  the 
revenues  agreeably  to  the  letters  patent  and  the  donor's  intention,  or  as 
near  thereto  as  circumstances  would  permit  and  the  court  should  direct. 
Lord  Eldon  held  that  neither  the  donor's  heirs  at  law  nor  the  crown 
took  the  land  discharged  of  the  charity ;  referred  the  case  to  a  master 
to  report  a  scheme ;  and  confirmed  the  report  of  the  master,  approving 
a  scheme  for  the  application  of  the  revenues  to  a  general  infirmary,  re- 
serving a  preference  to  all  lepers  who  might  offer  themselves.  Attor- 
ney General  v.  Hicks,  Highm.  Mortm.  336-354,  3  Brown,  Ch.  166, 
note. 

Sir  John  Romilly,  M.  R.,  afterwards  made  a  like  decision,  holding 
that  a  gift  made  in  1687  of  land  (for  which  in  1774  other  land  had  been 
substituted  by  leave  of  parliament)  in  trust  out  of  the  income  to  keep  it 
ready  for  a  hospital  and  burial  place  for  patients  sick  of  the  plague, 
was  a  present  gift  for  charitable  purposes,  and  valid,  although  the 
plague  had  not  reappeared  in  England  for  more  than  one  hundred  and 
eighty  years ;  and,  after  alluding  to  a  class  of  cases,  cited  for  the  heirs 
at  law  in  that  case,  as  they  have  been  in  this,  in  which  the  charitable  be- 
quest could  never  have  taken  efifect,  added,  "But  who  can  say,  when 
this  deed  was  executed  or  the  act  passed,  that  this  was  not  a  charitable 
trust,  capable  of  being  performed ;"  "and  if  it  were  ever  wholly  devot- 
ed to  charity,  those  cases  do  not  apply."  Attorney  General  v.  Craven, 
21  Beav.  392,  408. 

The  principle  that  a  bequest  to  trustees  for  charitable  purposes  indi- 
cated in  the  will,  which  are  lawful  and  capable  of  being  carried  out  at 


CHARITABLE    OR   PUBLIC   TRUSTS  297 

\ 

the  time  of  the  testator's  death,  will  not  be  allowed  to  fail  and  result 
to  the  heirs  at  law  upon  a  change  of  circumstances,  but  will  be  applied 
by  the  court  according  to  a  scheme  approved  by  a  master  to  carry  out 
the  intent  of  the  testator  as  nearly  as  possible,  has  been  affirmed  and  act- 
ed on  in  many  other  English  cases.  Attorney  General  v.  Pyle,  1  Atk. 
435  ;  Attorney  General  v.  Green,  2  Brown,  Ch.  492 ;  Attorney  General 
V.  Bishop  of  London,  3  Brown,  Ch.  171 ;  Moggridge  v.  Thackwell,  Id. 
517,  1  Ves.  Jr.  464;  Attorney  General  v.  Glyn,  12  Sim.  84;  Attorney 
General  v.  Lawes,  8  Hare,  32 ;  Attorney  General  v.  Vint,  3  De  Gex  & 
S.  705.  The  dicta  of  Lord  Alvanley,  upon  which  the  heirs  at  law  much 
rely,  do  not,  in  the  connection  in  which  they  were  uttered,  substantially 
differ  from  the  general  current  of  authority.  Attorney  General  v. 
Boultbee,  2  Ves.  Jr.  387,  388 ;  Attorney  General  v.  Whitchurch,  3  Ves. 
143,  144;  Attorney  General  v.  Minshull,  4  Ves.  14. 

By  the  opinion  of  Lord  Eldon,  formed  after  great  doubt  and  hesita- 
tion, the  principle  has  been  held  to  extend  to  the  case  of  a  bequest  o£ 
property  to  a  person  named  in  trust  for  such  charitable  purposes,  not 
otherwise  described,  as  he  should  appoint.  Moggridge  v.  Thackwell,  7 
Ves.  96,  13  Ves.  416;  Paice  v.  Archbishop  of  Canterbury,  14  Ves.  364,' 
Mills  V.  Farmer,  19  Ves.  483,  1  Mer.  55.  Such  a  trust  has  been  held 
valid  in  this  commonwealth,  so  far  as  to  vest  a  title  in  the  trustee  as 
against  the  next  of  kin.  Wells  v.  Doane,  3  Gray,  201.  Whether,  in 
case  of  his  death,  it  could  properly  be  administered  by  a  court  of  chan- 
cery, without  the  aid  of  the  prerogative  power,  need  not  be  considered 
in  this  case.  See  Fontain  v.  Ravenel,  17  How.  387,  388,  15  L.  Ed.  80; 
Moore  v.  Moore,  4  Dana  (Ky.)  366,  29  Am.  Dec.  417.i<> 

In  most  of  the  cases  cited  at  the  argument,  in  which  the  heirs  at 
law  were  held  to  be  entitled  to  the  property,  the  charitable  gift  never 
took  effect  at  all ;  either  because  it  could  not  be  carried  out  as  directed, 
without  violating  the  mortmain  act  of  9  Geo.  II.,  as  in  Jones  v.  Wil- 
liams, Amb.  651;  Attorney  General  v.  Whitchurch,  3  Ves.  141,  and. 
Smith  V.  Oliver,  11  Be'av.  481;  or  because  the  testator  had  in  terms 
limited  it  to  a  special  object  which  could  not  be  accomplished  at  the 
time  of  his  death;  as  in  the  case  of  a  bequest  to  build  a  church  in 
Wheatley,  which  could  not  be  done  without  the  consent  of  the  bishop,- 
and  he  refused  (Attorney  General  v.  Bishop  of  Oxford,  1  Brown,  Ch. 
444,  note;  Id.,  cited  2  Cox,  Ch.  365;  2  Ves.  Jr.  388;  and  4  Ves.  431, 
432) ;  or  of  a  direction  to  contract  with  the  governors  of  a  hospital  for 
the  purchase  of  a  presentation  of  a  boy  to  that  charity,  if  the  residuary 
assets  should  prove  sufficient  for  that  purpose,  and  they  proved  to  be 
insufficient  (Cherry  v.  Mott,  1  Mylne  &  C.  123). 

In  Marsh  v.  Means,  3  Jur.  (N.*S.)  790,  the  testator  gave  a  legacy, 
after  the  death  of  his  wife,  "for  continuing  the  periodical  published 
under  the  title  of  'The  Voice  of  Humanity,'  according  to  the  objects 
and  principles  which  are  set  forth  in  the  prospectus  contained  in  the 

10  See,  also,  Loring  v.  Marsh,  6  Wall.  .337,  18  L.  Ed.  802  (1867). 


208  EQUITABLE   ESTATES — USES    AND    TRUSTS 

third  number  of  that  publication."  "The  Voice  of  Humanity"  had 
been  pubHshed  quarterly  by  an  association  for  the  protection  of  ani- 
mals, but  no  number  had  appeared  for  nearly  a  year  before  the  date 
of  the  will.  Upon  the  death  of  the  widow  twenty  years  later,  Vice 
Chancellor  Wood  held  that  the  gift  was  not  to  support  the  principles 
of  the  publication,  but  only  the  publication  itself,  and,  the  publication 
having  ceased  and  the  association  perished,  that  the  legacy  lapsed. 
But  he  added,  "It  would,  I  think,  have  fallen  within  the  description  of 
charity,  if  this  periodical  had  been  subsisting  at  the  date  of  the  will, 
and  afterwards  ceased.  That  would  be  simply  a  case  where,  the  par- 
ticular intention  having  failed,  the  general  intention  must  be  carried 
out." 

Two  striking  cases  upon  this  subject  have  arisen  in  England  under 
charities  for  the  redemption  of  captives. 

In  the  Case  of  Betton's  Charity,  Thomas  Betton  in  1723'  bequeathed 
the  residue  of  his  estate  to  the  Ironmonge.  j'  Company,  in  trust,  "posi- 
tively forbidding  them  to  diminish  the  capital  sum  by  giving  away  any 
part,  or  that  the  interest  and  profit  arising  be  applied  to  any  other 
use  or  uses  than  hereinafter  mentioned  and  directed,"  namely,  one 
half  of  the  income  yearly  unto  the  redemption  of  British  slaves  in 
Turkey  or  Barbary,  one  fourth  unto  charity  schools  in  the  city  and 
suburbs  of  London  where  the  education  is  according  to  the  church 
of  England,  and  one  fourth  "unto  necessitated  decayed  freemen  of 
the  company,  their  widows  and  children."  The  first  half  of  the  in- 
come of  the  fund  greatly  accumulated,  few  such  slaves  having  been 
found  for  a  century.  Lord  Brougham,  reversing  the  decree  of  Sir 
John  Leach,  M.  R.,  held  that  the  court  had  jurisdiction  to  apply  the 
surplus  income  of  this  moiety  and  its  accumulations,  as  near  as  might 
be  to  the  intentions  of  the  testator ;  having  regard  to  the  bequest 
touching  British  captives,  and  also  to  the  other  charitable  bequests  in 
the  will ;  and  that  the  case  should  be  referred  back  to  the  master  to 
approve  a  proper  scheme  for  such  application.  Attorney  General  v. 
Ironmongers'  Co.,  2  Mylne  &  K.  576.  Sir  Christopher  Pepys,  M.  R. 
(afterwards  Lord  Cottenham,)  accordingly  oVdered  it  to  be  so  refer- 
red. On  the  return  of  the  master's  report,  Lord  Langdale,  M.  R., 
approved  a  scheme  to  apply  the  whole  fund  to  the  second  and  third 
purposes  declared  in  the  will.  2  Beav.  313.  Lord  Chancellor  Cotten- 
ham on  appeal  reversed  this  decree ;  and  upon  the  ground  that  the 
testator  had  not  limited  the  first  charity,  like  the  others,  to  persons  in 
London,  ordered  the  first  moiety  to  be  applied  to  supporting  and  as- 
sisting charity  schools  in  England  and  Wales,  and  referred  it  back 
to  the  master  to  settle  a  scheme  for  that  purpose.  Craig  &  P.  208. 
And  this  decree  was  affirmed  in  the  house  of  lords  with  the  concur- 
rence of  Lord  Chancellor  Lyndhurst,  and  Lords  Brougham,  Cotten- 
ham and  Campbell.  10  Clark  &  F.  908.  In  that  case,  though  there 
were  differences  of  opinion  as  to  the  details  of  the  scheme,  the  juris- 


CHARITABLE    OK    PUBLIC    TRUSTS  299 

diction  of  the  court  of  chancery  to  frame  one  in  such  a  case  was  thus 
affirmed  by  the  dehberate  judgments  of  five  law  lords;  and  all  agreed 
that,  for  the  purpose  of  ascertaining  what  was  cy  pres  to  the  particu- 
lar object  which  had  failed,  the  court  might  look  at  all  the  charitable 
bequests  in  the  will ;  applying  in  this  respect  the  principle  upon  which 
Lord  Bacon  had  acted  more  than  two  centuries  before  in  the  case  of 
Bloomfield  v.  Stowemarket,  above  cited. 

But  the  case  most  like  that  now  before  us  is  that  of  Lady  Mice's 
Charity,  Lady  Mico,  by  her  will  made  in  1670,  gave  a  thousand  pounds 
"to  redeem  poor  slaves  in  what  manner  the  executors  should  think 
most  convenient."  This  charity  was  established  by  decree  in  chan- 
cery in  1686.  Upon  an  information  filed  in  1827,  after  the  fund  had 
accumulated  a  hundred  fold,  it  was  referred  to  a  master  to  approve 
of  a  scheme  for  the  application  of  the  income  according  to  the  will 
of  the  testatrix,  or,  if  he  should  find  that  it  could  not  be  executed 
according  to  her  will,  then  as  near  the  intent  of  the  will  as  could  be, 
regard  being  had  to  the  existing  circumstances  and  to  the  amount  of 
the  fund.  The  master,  by  his  general  report  in  1835,  stated  that  the 
relators  had  laid  before  him  a  scheme  for  applying  the  fund  to  the 
enfranchisement  of  slaves  in  the  British  Colonies  who  were  too  poor 
to  purchase  their  own  freedom ;  which  application,  in  consequence  of 
St.  3  &  4  Wm.  IV.  c.  7Z,  abolishing  slavery  (which  took  effect  in 
1834),  had  become  impracticable;  that  he  was  of  opinion  that  the 
testatrix  by  her  will  contemplated  the  redemption  of  poor  slaves  in 
the  Barbary  States,  but  that  intention  could  not  be  carried  into  effect ; 
and  he  approved  a  scheme  to  'apply  the  capital  and  income  in  pur- 
chasing and  building  school-houses  for  the  education  of  the  emanci- 
pated apprentices  and  their  issue,  qualifying  teachers,  paying  the  sal- 
aries of  masters  and  other  expenses,  and  to  apply  the  surplus  rents 
to  the  support  of  any  other  schools,  and  generally  in  promoting  edu- 
cation in  the  British  Colonies.  Sir  Christopher  Pepys,  M.  R.,  con- 
firmed this  scheme  by  a  decree ;  and,  after  he  had  become  lord  chan- 
cellor, stated  the  reasons  to  have  been  that  "in  this  there  was  no 
restriction  as  to  the  description  of  slaves,  or  the  countries  in  which 
the  slaves  were  to  be  looked  for;"  that  upon  the  reference  to  the 
master  "it  appeared  that  there  were  not  within  any  part  of  the  British 
dominions  any  poor  slaves  to  be  redeemed,  but  that  there  were  in  the 
colonies  many  thousands  of  human  beings  from  whom  the  odious 
appellation  of  slaves  had  been  removed,  but  whose  state  was  very  far 
short  of  that  of  freemen,  from  whose  bodies  the  chains  of  slavery 
had  been  struck,  but  whose  minds  and  morals  were  still  in  that  state 
of  degradation  which  is  inseparable  from  the  unfortunate  situation 
from  which  they  had  recently  been  in  part  rescued ;  it  was  proposed 
to  the  master  to  apply,  and  he  approved  of  a  scheme  for  the  comple- 
tion of  that  holy  work,  by  assisting  in  the  education  of  those  poor 
beings.     If,  before  the  slavery  abolition  act,  these  funds  could  prop- 


300  BQUITABLB  ESTATES — USES    AND   TRUSTS 

erly  have  been  applied  to  procuring  the  redemption  of  sla'\^es  in  the 
colonies,  the  proposed  application  for  the  benefit  of  the  apprentices 
was  doubtless  cy  pres  to  the  intention  of  the  donor."  And  his  reason 
for  not  applying  Betton's  Charity  in  the  same  manner  was  that  it 
was  in  terms  limited  to  slaves  in  Turkey  or  Barbary.  Attorney  Gen- 
eral V.  Gibson,  2  Beav.  317,  note;  Attorney  General  v.  Ironmongers' 
Co.,  Craig  &  P.  226,  227. 

There  is  no  adjudication  of  this  question  ^y  the  supreme  court  of 
the  United  States.  The  dicta  of  Chief  Justice  Marshall  in  Baptist 
Ass'n  V.  Hart's  Ex'rs,  4  Wheat.  1,  4  L.  Ed.  499,  were  based  upon  an 
imperfect  survey  of  the  authorities,  were  not  required  by  the  decision, 
and  are  hardly  reconcilable  with  the  more  recent  judgments  of  the 
same  court ;  and  that  case,  as  well  as  Wheeler  v.  Smith,  9  How.  79, 
13  L.  Ed.  44,  arose  under  the  law  of  Virginia.  Vidal  v.  Girard's 
Ex'rs,  2  How.  192,  11  L.  Ed.  205;  Perin  v.  Carey,  24  How.  501,  16 
L.  Ed.  701;  Bartlett  v.  Nye,  4  Mete.  380;  American  Academy  of 
Arts  &  Sciences  v.  President,  etc.,  of  Harvard  College,  12  Gray,  593 ; 
2  Kent,  Comm.  287.  In  Fontain  v.  Ravenel,  17  How.  369,  15  L.  Ed. 
80,  the  testator  authorized  his  executors  or  the  survivor  of  them  to 
dispose  of  the  residue  of  his  estate  "for  the  use  of  such  charitable  in- 
stitutions in  Pennsylvania  and  South  Carolina,  as  they  or  he  may 
deem  most  beneficial  to  mankind,"  and  they  died  without  appointing; 
and  it  was  held  that  the  title  did  not  vest  in  the  executors  as  trustees, 
and  that  according  to  the  English  law  the  disposition  would  have  been 
in  the  crown  by  sign  manual.  As  Mr.  Justice  McLean,  delivering 
the  opinion  of  the  court,  said :  "Nothing  short  of  the  prerogative 
power,  it  would  seem,  can  reach  this  case.  There  is  not  only  uncer- 
tainty in  the  beneficiaries  of  this  charity,  but  behind  that  is  a  more 
formidable  objection.  There  is  no  expressed  will  of  the  testator. 
He  intended  to  speak  through  his  executors  or  the  survivor  of  them, 
but  by  the  acts  of  Providence  this  has  become  impossible.  It  is  then 
as  though  he  had  not  spoken.  Can  any  power  now  speak  for  him, 
except  the  parens  patriae?"  The  further  remarks  about  the  power  of 
cy  pres,  if  intended  to  cover  a  case  in  which  the  charitable  purposes 
were  described  or  indicated  in  the  will,  were  upon  a  question  not  be- 
fore the  court.  The  separate  opinion  of  Chief  Justice  Taney  in  Fon- 
tain V.  Ravenel  was  but  his  own,  based  mainly  upon  that  of  Chief 
Justice  Marshall  in  Baptist  Ass'n  v.  Hart's  Ex'rs.  And  it  is  impos- 
sible to  avoid  the  inference  that  the  impressions  of  both  of  those  emi- 
nent magistrates  were  derived  from  the  laws  of  Maryland  and  Vir- 
ginia in  which  they  had  been  educated,  and  by  which  St.  43  Eliz.  has 
been  expressly  repealed,  and  charities  are  not  recognized  as  entitled 
to  any  favor,  either  in  duration  or  construction,  beyond  other  trusts. 
Dashiell  v.  Attorney  General,  5  Har.  &  J.  (Md.)  392,  9  Am.  Dec.  572 ; 
Gallego  V.  Attorney  General,  3  Leigh  (Va.)  450,  24  Am.  Dec.  650. 
In  North  Carolina,  the  supreme  court  once  declared  that  it  had  all 


CHARITABLE    OR   PUBLIC   TRUSTS  301 

the  powers  exercised  by  the  EngHsh  chancellor,  either  in  the  equity 
jurisdiction  or  under  the  sign  manual;  and  since,  rebounding  from 
that  extreme  opinion,  seems  to  have  adopted  the  view  of  Maryland 
and  Virginia.  Griffin- v.  Graham,  8  N.  C.  96,  9  Am.  Dec.  619;  Mc- 
Auley  v.  Wilson,  16  N.  C.  276,  18  Am.  Dec.  587 ;  Holland  v.  Peck, 
Z7  N.  C.  255.  There  is  a  dictum  to  a  like  effect  in  Carter  v.  Balfour, 
19  Ala.  830.  So  in  New  York,  the  court  of  appeals,  after  some  divi- 
sion and  vacillation  of  opinion  in  the  course  of  the  frequent  changes 
in  the  composition  of  the  court,  has  recently  adjudged  that  in  that 
state  the  English  law  of  charitable  uses  has  been  wholly  abrogated 
by  statute,  and  that  charities  are  within  the  rule  against  perpetuities, 
and  have  no  privileges  about  private  trusts.  Bascom  v.  Albertson,  34 
N.  Y.  584. 

On  the  other  hand,  the  court  of  appeals  of  Kentucky,  in  an  able 
judgment  delivered  by  Chief  Justice  Robertson,  marked  the  distinc- 
tion between  the  power  exercised  under  the  sign  manual,  and  that  in- 
herent in  the  equity  jurisdiction;  and,  after  speaking  of  the  former 
as  not  judicial,  added :  "The  cy  pres  doctrine  of  England  is  not,  or 
should  not  be,  a  judicial  doctrine,  except  in  one  kind  of  case;  and 
that  is,  where  there  is  an  available  charity  to  an  identified- or  ascer- 
tainable object,  and  a  particular  mode,  inadequate,  illegal  or  inap- 
propriate, or  which  happens  to  fail,  has  been  prescribed.  In  such 
case,  a  court  of  equity  may  substitute  or  sanction  any  other  mode  that 
may  be  lawful  and  suitable  and  will  effectuate  the  declared  intention 
of  the  donor,  and  not  arbitrarily  and  in  the  dark,  presuming  on  his 
weakness  or  wishes,  declare  an  object  for  him.  A  court  may  act  judi- 
cially as  long  as  it  effectuates  the  lawful  intention  of  the  donor." 
Moore  v.  Moore,  4  Dana  (Ky.)  366,  29  Am.  Dec.  417.  See,  also, 
Gass  V.  Wilhite,  2  Dana  (Ky.)  177,  26  Am.  Dec.  446;  Curling  v. 
Curling,  8  Dana  (Ky.)  38,  33  Am.  Dec.  475.  The  power  of  cy  pres, 
which  was  declared  by  the  supreme  court  of  Pennsylvania  in  Methodist 
Church  V.  Remington,  1  Watts,  226,  26  Am.  Dec.  61,  and  Witman  v. 
Lex,  17  Serg.  &  R.  93,  17  Am.  Dec.  644,  not  to  exist  in  that  state, 
was  the  power  exercised  under  the  sign  manual  in  case  of  a  gift  to 
superstitious  uses,  or  of  any  expression  of  general  intention  to  devote 
a  sum  to  charitable  purposes  not  designated.  In  a  very  recent  case, 
the  same  court  said:  "The  rule  of  equity  on-this  subject.seeiiis-to-be-- 
clear,  that  when  a  definite  charity  is  created,  the  failure  of  the  partic- 

"Utaf  mode  in  which  it  is  to  be  effectuated  does  not  destroy  the  charity ; 

^or^'eqmty  will  substitute  another  mode,  so  that  the  substantial  inten- 
tion shall  not  depend  upon  the  formal  intention."     "And  this  is  the 

"doctrine  of  cy  pres,  so  far  as  it  has  been  expressly  adopted  by  us" — 
"a  reasonable  doctrine,  by  which  a  well  defined  charity,  or  one  where 
the  means  of  definition  are  given,  may  be  enforced  in  favor  of  the 

•  general  intent,  even  where  the  mode  or  means  provided  for  by  the  do- 
nor fail  by  reason  of  their  inadequacy  or  unlawfulness."    Philadelphia 


302  EQUITABLE   ESTATES — USES   AND   TRUSTS 

V.  Girard,  45  Pa.  27,  28,  84  Am.  Dec.  470.  Like  principles  have  been 
maintained  in  South  Carolina  and  Illinois.  Attorney  General  v.  Jolly, 
1  Rich.  Eq.  99,  42  Am.  Dec.  349;  Id.,  2  Strob.  Eq.  395;  Gilman  v. 
Hamilton,  16  111.  231.  The  existence  of  a  judicial  power  to  admin- 
ister a  charity  cy  pres  where  the  expressed  intention  of  the  founder 
cannot  be  exactly  carried  out  has  been  either  countenanced  or  left 
an  open  question  in  all  the  New  England  states  except  Connecticut. 
Burr  y.  Smith,  7  Vt.  287,  288,  29  Am.  Dec.  154;  Second  Congrega- 
tional Soc.  V.  First  Congregational  Soc,  14  N.  H.  330;  Brown  v. 
Concord,  33  N.  II.  296;  Derby  v.  Derby,  4  R.  I.  439;  Tappan  v. 
Deblois,  45  Me.  131 ;  'Howard  v.  American  Peace  Soc,  49  Me.  302, 
303;  Treat's  Appeal,  30  Conn.  113.  See,  also,  2  Redf.  Wills,  815, 
note;  McCord  v.  Ochiltree,  8  Blackf.  (Ind.)  15;  Beall  v.  Fox,  4  Ga. 
427 ;  Chambers  v.  St.  Louis,  29  Mo.  590,  592 ;  Lepage  v.  Macnamara, 
5  Iowa,  146;    Mclntyre  v.  Zanesville,  17  Ohio  St.  352. 

The  narrow  doctrines  which  have  prevailed  in  some  states  upon 
this  subject  are  inconsistent  with  the  established  law  of  this  common- 
wealth. Our  ancestors  brought  with  them  from  England  the  elements 
of  the  law  of  charitable  uses,  and,  although  the  form  of  proceeding 
by  commission  luider  St.  43  Eliz.  has  never  prevailed  in  Massachu-  • 
setts,  that  statute,  in  substance  and  principle,  has  always  been  con- 
sidered as  part  of  our  common  law.  4  Dane,  Abr.  6,  239;  Earle  v. 
AA'ood,  8  Cush.  445.  Under  the  Colony  charter,  charities  were  regu- 
lated and  administered,  according  to  the  intent  of  the  donors,  under 
the  direction  of  the;  general  court,  the  court  of  assistants,  and  the 
county  courts;  and  under  the  Province  charter,  although  no  court  was 
vested  with  equity  jurisdiction,  charitable  bequests  were  not  the  less 
valid.  Anc.  Chart.  52;  Drury  v.  Natick,  10  Allen,  180.  181,  and 
authorities  cited;  Winslow  v.  Trowbridge,  stated  in  11  Allen,  459. 
460.  The  English  mortmain  act  of  9  Geo.  II.  c.  36,  did  not  extend 
to  Massachusetts ;  and  the  similar  provision  in  Prov.  St.  28  Geo.  II. 
c.  9,  was  repealed  immediately  after  our  Revolution  by  St.  1785.  c. 
51.  Odell  V.  Odell  10  Allen,  6.  Charities  are  held  not  to  be  within 
the  common  rule  limiting  perpetuities  and  accumulations.  Dexter  v. 
Gardner,  7  Allen,  243;  Odell  v.  Odell,  10  Allen,  1.  Charitable  be- 
quests to  an  unincorporated  society  here,  to  a  foreign  corporation  or 
society,  or  to  a  particular  religious  denomination  in  a  certain  county, 
have  been  carried  into  effect,  even  where  no  trustees  have  been  named 
in  the  will.  Burbank  v.  Whitney,  24  Pick.  146.  35  Am.  Dec.  312; 
Bartlett  v.  Nye,  4  Mete.  378;  Washburn  v.  Sewall,  9  Mete.  280;  Uni- 
versalist  Soc.  v.  Fitch,  8  Gray,  421.  See,  also,  Wells  v.  Doane,  3 
Gray.  201 ;    Saltonstall  v.  Sanders,  11  Allen,  446. 

The  intent  ionof  tha^testator  igjilie  guide,  or,  in  the  phrase  of  Lord 
Cok^lTlTe  lodestone,  of  the  court;  and  therefore,  whenever  a  char- 
itable gift  can  be  administered  according  to  his  express  directions, 
this  court,  like  the  court  of  chancery  in   England,  is  not  at  liberty 


CHARITABLE    OR   PUBLIC   TRUSTS  303 

to  modify  it  upon  considerations  of  policy  or  convenience.  Harvard 
College  V.  Society  for  Promoting  Theological  Education,  3  Gray,  280; 
Baker  v.  Smith,  13  Mete.  34;  Trustees  of  Smith  Charities  v.  In- 
habitants of  Northampton,  10  Allen,  498.  But  there  are  Several  cases, 
where  the  charitable  trust  could  not  be  executed  as  directed  in  the 
will,  in  which  the  testator's  scheme  has  been  varied  by  this  court  in 
such  a  way  and  to  such  an  extent  as  could  not  be  done  in  the  case  of 
a  private  trust.  Thus  bequests  to  a  particular  Bible  society  by  name, 
whether  a  corporation  established  by  law  or  a  voluntary  association, 
which  had  ceased  to  exist  before  the  death  of  the  testator,  have  been 
sustained,  and  applied  to  the  distribution  of  Bibles  through  a  trustee 
appointed  by  the  court  for  the  purpose.  Winslow  v.  Cummings,  3 
Cush.  358;  Bliss  v.  American  Bible  Soc,  2  Allen,  334.  At  a  time 
when  the  general  chancery  jurisdiction  of  this  court  over  trusts  was 
limited  to  those  arising  under  deeds  and  wills,  the  legislature  by  a  spe- 
cial statute  authorized  it  to  hear  and  determine  in  equity  any  and  all 
matters  relating  to  a  certain  gift  to  a  scientific  corporation,  to  be 
invested  in  a  certain  manner,  and  paid  in  premiums  for  discoveries  or 
improvements  on  heat  or  light  published  in  America  within  two  years 
before  each  award.  Upon  a  bill  being  filed,  and  it  appearing  that  it 
had  become  impracticable  to  carry  out  the  intent  of  the  donor  in  the 
mode  prescribed.  Chief  Justice  Shaw  authorized  a  different  investment 
of  the  fund ;  and,  in  accordance  with  a  scheme  reported  by  a  master, 
authorized  the  corporation  to  apply  the  surplus  income,  after  paying 
such  premiums,  to  purchasing  books,  papers  and  philosophical  appa- 
ratus, and  making  such  publications  or  procuring  such  lectures,  experi- 
ments or  investigations  as  should  facilitate  and  encourage  the  making 
of  such  discoveries  and  improvements;  and  said:  "Whenever  it  ap- 
pears .tliat  a  general  object  of  charity  is  intended,  and  the  purpose^'i-s* 
jiot  unlawful  and  void,  the  right  of  the  heir  at  law  is  divested." '  "If 
is  now  a  settled  rule  in  equity  that  a  liberal  construction  is  to  be  given 
to  charitable  donations,  with  a  view  to  promote  and  accomplish  the 
general  charitable  intent  of  the  donor,  and  that  such  intent  ought 
to  be  observed,  and  when  this  cannot  be  strictly  and  literally  done, 
this  court  will  cause  it  to  be  fulfilled  as  nearly  in  conformity  with  the 
intent  of  the  donor  as  practicable.  Where  the  property  thus  given  is 
given  to  trustees  capable  of  taking,  but  the  property  cannot  be  applied 
precisely  in  the  mode  directed,  the  court  of  chancery  interferes,  and 
regulates  the  disposition  of  such  property  under  its  general  jurisdic- 
tion on  the  subject  of  trusts,  and  not  as  administering  a  branch  of 
the  prerogative  of  the  king  as  parens  patriae."  "What  is  the  nearest 
method  of  carrying  into  effect  the  general  intent  of  the  donor  must  of 
course  depend  upon  the  subject  matter,  the  expressed  intent,  and  the 
otlTer  circumstances  of  each  particular  case,  upon  all  of  which  the 
court  is  to  exercise  its  discretion.  American  Academy  v.  Harvard 
T!ollege,  12  Gray,  582.     The  same  principle  was  also  recognized  or 


304  EQUITABLE  ESTATES — USES   AND    TRUSTS 

assumed  in  4  Dane,  Abr.  242,  243,  in  Sanderson  v.  White,  18  Pick. 
333,  29  Am.  Dec.  591,  and  other  cases  already  cited.  Baker  v.  Smith, 
13  J^Ietc.  41 ;  Harvard  College  v.  Society  for  Promoting  Theological 
Education,  3'  Gray,  282,  298;  Trustees  of  Smith  Charities  v.  Inhab- 
itants of  Northampton,  10  Allen,  501,  502. 

By  Gen.  St.  c.  113,  §  2,  this  court  may  hear  and  determine  in  equity  _ 
all  s'uiFs'"and~proceedrngs  for  enforcing  and  regulating  the  execution 
of  trusts,  whether  the  trusts  relate  to  real  or  personal  estate,  "and 
shall  have  full  equity  jurisdiction,  according  to  the  usage  and  prac- 
tice of  courts  of  equity,  in  all  other  cases,  where  there  is  not  a  plain, 
adequate  and  complete  remedy  at  law."  The_£owers  usually  exercised  __ 
by  the  court  of  chancery  in  the  course^oTlts  jurisdiction  in  equity 
have  thus  been  expressly  conferred  upon  this  court  by  the  legislature. 
The  authority  of  administering  a  charitable  trust  according"  to  the 
expressed  intention  of  the  donor,  and,  when  that  cannot  be  exactly 
followed,  then  as  nearly  as  possible,  is  a  part  of  this  jurisdiction,  which 
the  court  is  not  at  liberty  to  decline.  The  only  question  is,  whether 
the  facts  of  the  case  show  a  proper  occasion  for  its  exercise  according 
to  the  settled  practice  in  chancery. 

In  all  the  cases  cited  at  the  argument,  in  which  a  charitable  bequest, 
which  might  have  been  lawfully  carried  out  under  the  circumstances 
existing  at  the  death  of  the  testator,  has  been  held,  upon  a  change  of 
circumstances,  to  result  to  the  heirs  at  law  or  residuary  legatees,  the 
gift  was  distinctly  limited  to  particular  persons  or  establishments. 
Such  was  Russell  v.  Kellett,  3  Smale  &  G.  264,  in  which  the  gift  was 
of  five  pounds  outright  to  each  poor  person  of  a  particular  description 
in  certain  parishes,  and  Vice  Chancellor  Stuart  held  that  the  shares  of 
those  who  died  before  receiving  them  went  to  the  residuary  legatees. 
Such,  also,  was  Clark  v.  Taylor,  1  Drew.  642,  in  which  it  was  held 
that  a  legacy  to  a  certain  orphan  school  by  name,  which  ceased  to  exist 
after  the  death  of  the  testator,  failed  and  fell  into  the  residue  of  the 
estate;  and  which  can  hardly  be  reconciled  with  the  decisions  in  In- 
corporated Soc.  V.  Price,  1  Jones  &  L.  498,  7  Ir.  Eq.  260 ;  In  re  Clergy 
Society,  2  Kay  &  J.  615  ;  Marsh  v.  Attorney  General,  2  Johns.  &  H.  61 ; 
Winslow  V.  Cummings,  3  Cush.  358,  and  Bliss  v.  American  Bible  Soc, 
2  Allen,  334.  So  in  Easterbrooks  v.  Tillinghast,  5  Gray,  17,  the  trust 
was  expressly  limited,  not  only  in  object,  but  in  duration,  to  the  main- 
tenance of  the  pastor  of  a  certain  church  of  a  specified  faith  and  prac- 
tice in  a  particular  town,  "so  long  as  they  or  their  successors  shall 
maintain  the  visibility  of  a  church  in  said  faith  and  order ;"  and  could 
not  have  been  held  to  have  terminated,  had  it  not  been  so  limited.  At- 
torney General  v.  Columbine,  Boyle,  Char.  204,  205 ;  Perry  v.  Thurs- 
ton, 7  R.  I.  25;  Dexter  v.  Gardner,  7  Allen,  243. 

The  charitable  bequests  of  Francis  Jackson  cannot,  in  the  opiniojL-, 
of  the  court,  be  regarded  as  so  restricted  in  their  objects,  or  so  limited 
~~in  point  of  time,  as  to  have  been  terminated  and  destroyed  by  the  aboli.- 
ITon  of  slavery  in  the  United  States.    They  are  to  a  board  of  trustees 


CHARITABLE    OR   PUBLIC   TRUSTS  305 

for  whose  continuance  careful  provision  is  made  in  the  will,  and  which 
the  testator  expresses  a  wish  may  become  a  permanent  organization 
and  may  receive  the  services  and  sympathy,  the  donations  and  bequests, 
of  the  friends  of  the  slave.  Their  duration  is  not  in  terms  limited,  like 
that  of  the  trust  sought  to  be  established  in  the  sixth  article  of  the 
will,  by  the  accomplishment  of  the  end  specified.  They  take  effect 
from  the  time  of  the  testator's  death,  and  might  then  have  been  law- 
fully applied  in  exact  conformity  with  his  expressed  intentions.  The 
retaining  of  the  funds  in  the  custody  of  the  court  while  this  case  has 
been  under  advisement  cannot  affect  the  question.  The  gifts  being 
lawful  and  charitable,  and  having  once  vested,  the  su'Bsequenf'" change 
of  circumstances  before  the  funds  have  been  actually  paid  over  is  of 
no"  more  weight  than  if  they  had  been  paid  to  the  trustees  and  beer 
administered  by  them  for  a  century  before  slavery  was  extinguished. 

Relther  the  immediate  purpose  of  the  testator — the  moral  education 
of  the  people;  nor  his  ultimate  object — to  better  the  condition  of  the 
^Stffcan  "race  in  this  country ;  has  been  fully  accomplished  by  the  aboli- 
tion of  slavery, 

Negro  slavery  was  recognized  by  our  law  as  an  infraction  of  the 
rights  inseparable  from  human  nature;  and  tended  to  promote  idle- 
ness, selfishness  and  tyranny  in  one  part  of  the  community,  a  destruc- 
tion of  the  domestic  relations  and  utter  debasement  in  the  other 
.part.  The  sentiment  which  would  put  an  end  to  it  is  the  sentiment 
of  justice,  humanity  and  charity,  based  upon  moral  duty,  inspired  by 
the  most  familiar  precepts  of  the  Christian  religion,  and  approved  by 
the  constitution  of  the  commonwealth.  The  teaching  and  diffusion 
of  such  a  sentiment  are  not  of  temporary  benefit  or  necessity,  but  of 
perpetual  obligation.  Slavery  may  be  abolished ;  but  to  strengthen  and 
confirm  the  sentiment  which  opposed  it  will  continue  to  be  useful  and 
desirable  so  long  as  selfishness,  cruelty,  the  lust  of  dominion,  and  in- 
difference to  the  rights  of  the  weak,  the  poor  and  the  ignorant,  have 
a  place  in  the  hearts  of  men.  Looking  at  the  trust  established  by  the 
fourth  article  of  this  will  as  one  for  the  moral  education  of  the  people 
only,  the  case  is  within  the  principle  of  those,  already  cited,  in  which 
charities  for  the  relief  of  leprosy  and  the  plague  were  held  not  to  end 
with  the  disappearance  of  those  diseases ;  and  is  not  essentially  dif- 
ferent from  that  of  Attorney  General  v.  Baliol  College,  in  which  a 
trust  for  the  education  at  Oxford  of  Scotch  youths,  to  be  sent  into 
Scotland  to  preach  Episcopalianism  in  the  established  church  there, 
was  applied  by  Lords  Somers  and  Hardwicke  and  their  successors  to 
educate  such  youths,  although,  by  the  change  of  faith  and  practice  of 
the  Church  of  Scotland,  the  donor's  ultimate  object  could  no  longer  be 
accomplished. 

The  intention  of  Francis  Jackson  to  benefit  the  negro  race  appears 
not  only  in  the  leading  clause  of  the  fourth  article,  and  in  his  expres- 
sion of  a  hope  that  his  trustees  might  receive  the  aid  and  the  gifts  of 
Burd.Cas.Real  Prop. — 20 


o 


06  EQUITABLE  ESTATES — USES    AND    TRUSTS 


the  friends  of  the  slave,  but  in  the  trust  fgr  the  benefit  of  fugitive 
slaves  in  the  fifth  article  of  the  will,  to  which,  according  to  the  prin- 
ciple established  by  the  house  of  lords  in  the  Case  of  Betton's  Charity, 
resort  may  be  had  to  ascertain  his  intent  and  the  fittest  mode  of  carry- 
ing it  out.  The  negroes,  although  emancipated,  still  stand  in  grgaLnefid— _. 
of  assistance  and  education.  Charities  for  the  relief  of  the  poor  have_ 
been  often  heT3  to  be  well  applied  to  educate  them  and  their  children. 
'Bishop  of  Hereford  v.  Adams,  7  Ves.  324;  Wilkinson  v.  Malin,  2 
Cromp.  &  J.  636,  2  Tyrw.  544;  Anderson  v.  Wrights  of  Glasgow,  12 
L.  T.  (N.  S.)  807.  The  Case  of  Mico  Charity  is  directly  to  thejgoint 
that  a  gift  for  the  redemption  of  poor  slaves  may  be  appropriated^..aft£j" 
ihcy  have  Ijccu  emancipated  by  law,  to  educate  them;  and  the  reasons 
given  byXoFd  Cottenham  for  that  decision  apply  with  no  less  Jtojce 
to  those  setfree  by  the  recent  amendment  of  the  constitution  in  the 
United  States,  than  to  those  who  were  emancipated  by  act  of'parlia- 
ment  in  the  West  Indies. 

The  mode  in  which  the  funds  bequeathed  by  the  fourth  and  fifth 
articles  of  the  will  may  be  best  applied  to  carry  out  in  a  lawful  manner 
the  charitable  intents  and  purposes  of  the  testator  as  nearly  as  possible 
must  be  settled  by  a  scheme  to  be  framed  by  a  master  and  confirmed 
by  the  court  before  the  funds  are  paid  over  to  the  trustees.  In  doing 
this,  the  court  does  not  take  the  charity  out  of  the  hands  of  the  trus- 
tees, but  only  declares  the  law  which  must  be  their  guide  in  its  admin- 
istration. Shelf.  Mortm.  651-654;  Boyle,  Char.  214-218.  .  The  case  is 
therefore  to  be  referred  to  a  master,  with  liberty  to  the  attorney  gen- 
eral and  the  trustees  to  submit  schemes  for  his  approval ;  and  all  fur- 
ther directions  are  reserved  until  the  coming  in  of  his  report. 

Case  referred  to  a  master. 

''i'lie  case  vvas  then  referred  to  John  Codman,  Esquire,  a  master  in 
chancery  for  this  county,  who,  after  notice  to  the  trustees  and  the  at- 
torney general,  and  hearing  the  parties,  made  his  report,  the  results 
of  which  were  approved  by  the  attorney  general ;  and  upon  exceptions 
to  which  the  case  was  argued  by  W.  Phillips  for  himself  and  other 
excepting  trustees,  and  by  J.  A.  Andrew  in  support  of  the  master's 
report,  before  Gray,  J.,  with  the  agreement  that  he  should  consult  the 
whole  court  before  entering  a  final  decree.  No  account  was  asked  by 
any  party  of  sums  already  expended  by  the  trustees. 

As  to  the  bequest  in  the  fifth  article,  the  master  reported  that  the 
unexpended  balance  (amounting  to  $1,049.90)  was  so  small  that  it  was 
reasonable  that  it  should  be  confined  to  a  limited  territory ;  and  that  it^ 
should  therefore  be  applied  by  the  trustees,  in  accordance  with  their 
unanimous  recommendation,  to  the  use  of  necessitous  persons  of  Afri-" 
can  descent  in  the  city  of  Boston  and  its  vicinity.     This  scheme  was^ 
approved  and  confirmed  by  the  court,  with  this  addition:     "Prefer- 
"~ence  being  given  to  such  as  have  escaped  from  slavery." 

As  to  the  sum  bequeathed  in  the  fourth  article  of  the  will,  the  master 
reported  that  a  portion  had  been  expended  by  the  trustees  before  any 


CHARITABLE   OR   PUBLIC   TRUSTS  307 

question  arose  as  to  its  validity ;  and  that  but  two  schemes  had  been 
suggested  to  him  for  the  appropriation  of  the  residue,  namely,  first, 
(which  was  approved  by  four  of  the  seven  trustees  who  had  accepted 
the  trust,)  in  part  to  the  support  of  the  Anti-Slavery  Standard,  and  in 
part  to  the  New  England  Branch  of  the  American  Freedmen's  Union 
Commission ;  or,  second,  (which  was  approved  by  the  remaining  trus- 
tees,) that  the  whole  should  be  applied  to  the  last  named  object. 

The  master  disapproved  of  the  first  of  these  schemes;  and  reported 
that  the  Anti-Slavery  Standard  was  a  weekly  newspaper  published  in 
the  city  of  New  York  with  a  circulation  of  not  more  than  three  thou- 
sand copies,  which  was  established  nearly  thirty  years  ago  for  the 
purpose  of  acting  upon  public  opinion  in  favor  of  the  abolition  of 
slavery;  that  in  his  opinion,  since  the  abolition  of  slavery,  and  the 
passage  of  the  reconstruction  acts  of  congress,  "the  support  of  a  paper 
of  such  limited  circulation  as  hardly  to  be  self-sustaining  would  do 
very  little  for  the  benefit  of  the  colored  people  in  their  present  status, 
and  its  direct  influence  would  be  almost  imperceptible  on  the  welfare 
of  that  class  most  nearly  corresponding  to  those  whom  the  testator  had 
in  view  in  making  this  bequest ;"  and  that  the  argument,  that  it  was  evi- 
dently the  intention  of  the  testator  to  accomplish  the  object  indicated 
in  the  fourth  article  of  his  will  by  means  of  which  a  newspaper  like 
this  might  be  considered  an  example,  was  answered  by  the  fact  that 
the  object  for  which  these  means  were  to  be  used  had  been  already 
accomplished  without  them.  The  master  returned  with  his  report  a 
few  numbers  of  the  Anti-Slavery  Standard,  (taken  without  selection 
as  they  were  given  to  him  by  the  chairman  of  the  trustees,)  by  which 
it  appeared  that  it  was  in  large  part  devoted  to  urging  the  passage 
of  laws  securing  to  the  freedmen  equal  political  rights  with  the  whites, 
the  keeping  of  the  southern  states  under  military  government,  the  im- 
peachment of  the  president,  and  other  political  measures. 

The  master  reported  that  he  was  unable  to  devise  any  better  plan 
than  the  second  scheme  suggested ;  that  this  mode  of  appropriation 
was  in  his  opinion  most  in  accordance  with  the  intention  of  the  testator 
as  expressed  in  the  fourth  article  of  the  will,  because  the  intention  near- 
est to  that  of  emancipating  the  slaves  was  by  educating  the  emancipat- 
ed slaves  to  render  them  capable  of  self-government;  and  this  could 
best  be  done  by  an  organized  society,  expressly  intended  and  exactly 
fitted  for  this  function,  and  which,  if  the  whole  or  any  part  of  this 
fund  was  to  be  applied  to  the  direct  education  and  support  of  the  freed- 
men, was  admitted  at  the  hearing  before  him  to  be  the  fittest  channel 
for  the  appropriation.  The  master  returned  with  his  report  printed 
documents  by  which  it  appeared  that  the  object  of  the  American  Freed- 
men's Union  Commission,  as  stated  in  its  constitution,  was  "the  relief, 
education  and  elevation  of  the  freedmen  of  the  United  States,  and  to 
aid  and  cooperate  with  the  people  of  the  South,  without  distinction  of 
race  or  color,  in  the  improvement  of  their  condition,  upon  the  basis  of 
industry,   education,   freedom   and  Christian  morality ;"  and  that  the 


* 
308  EQUITABLE   ESTATES — USES    AND   TRUSTS 

New  England  and  other  branches  of  the  commission  were  now  main- 
taining large  numbers  of  teachers  and  schools  for  this  purpose  through- 
out the  southern  states. 

The_rnaster_accordingly  reported  that  what  remained  of  the  fund 
bequeathed  by  the  fourth  article  of  the  will  should  be  "ordered  to  be 
paid  over  to  the  New  England  Branch  of  the  Freedmen's  Union  Com- 
mission,  to  be  employed  and  expended  by  them  in  promoting  the  edu'ca- 
tion7"supp6rt' and  interests  generally  of  the  freedmen  (late  slaves)  in 
the  states  of  this  Union  recently  in  rebellion."  And  this  sch^rrre  was 
by  the  opinion  of  the  whole  court  accepted  and  confirmed,  modified 
only  by  directing  the  executor  to  pay  the  fund  to  the  trustees,  to  be 
by  them  paid  over  at  such  times  and  in  such  sums  as  they  in  their 
discretion  might  think  fit  to  the  treasurer  of  the  branch  commission ; 
and  by  substituting  for  the  words  "recently  in  rebellion"  the  words 
"in  which  slavery  has  been  abolished,  either  by  the  proclamation  of 
the  late  President  Lincoln  or  the  amendment  of  the  constitution." 

Final  decree  accordingly. 


2.   BeNEJFlCIARlES 


PEOPLE  ex  rel.  ELLERT  v.  COGSWELU. 

(Supreme  Court  of  California,  1896.    113  Cal.  129,  45  Pac.  270,  35  L.  R.  A.  269.) 

Department  2.  Appeal  from  superior  court,  city  and  county  of  San 
Francisco  ;  Walter  H.  Levy,  Judge. 

Action  by  the  state,  on  relation  of  L.  R.  Ellert,  mayor  against  Henry 
D.  Cogswell,  Caroline  Cogswell,  and  others.  Judgment  for  plaintiff, 
and  defendant  Caroline  Cogswell  appeals.    Affirmed. 

Henshaw,  J.^^  Appeals  from  the*  judgment  and  from  the  order 
denying  a  new  trial.  Defendants  Henry  D.  Cogswell  and  his  wife, 
Caroline  E.  Cogswell,  upon  March  19,  1887,  executed  to  certain  trus- 
tees, themselves  among  the  number,  a  deed  of  trust  to  real  estate  in  the 
city  and  county  of  San  Francisco.  The  trust  was  created  under  the 
provisions  of  the  act  of  the  legislature  entitled  "An  act  to  advance 
learning,  the  arts  and  sciences,  and  to  promote  the  public  welfare  by 
providing  for  the  conveyance,  holding  and  protection  of  property,  and 
the  creation  of  trusts  for  the  founding,  endowment,  erection  and  main- 
tenance within  this  state  of  universities,  colleges,  schools,  seminaries 
of  learning,  mechanical  institutes,  museums  and  galleries  of  art."  St. 
1885,  p.  49.  The  nature,  object,  and  purposes  of  the  trust  were  declar- 
ed to  be  the  erection  and  maintenance  of  a  polytechnic  college  for  the 
purpose  of  giving  the  boys  and  girls  of  the  state  of  California  a  practi- 
cal training  in  the  mechanical  arts  and  industries,  the  better  to  fit  them 

11  Part  of  the  opinion  is  omitted. 


CHARITABLE   OR   PUBLIC   TRUSTS  309 

to  engage  in  the  different  pursuits  of  life.  Xhe  trustees,  including  the 
defendants  Cogswell,  accepted  the  trust  upon  the  day  of  the  execution 
of  the  deed,  and  thereafter  as  a  board  managed  and  conducted  its  af- 
fairs. The  defendants  Cogswell  attended  the  meetings  of  the  board, 
and  participated  in  its  deliberations  and  acts. 

The  present  action  was  brought  by  the  state  upon  the  relation  of  L. 
R.  Ellert,  mayor  of  San  Francisco,  to  have  the  trust  decreed  valid,  and 
for  relief  against  certain  acts  and  abuses  of  the  defendants  Cogswell 
and  other  defendant  trustees,  which  acts,  it  is  alleged,  were  designed  to 
hinder  the  management  of  the  trust,  and  to  frustrate  its  purpose  and 
defeat  its  object.  The  nature  of  these  acts  need  not  be  specified,  as  an 
amicable  stipulation  was  afterwards  entered  into,  which  eliminated 
these  matters  as  issues  in  the  case.  Under  this  stipulation  the  action 
was  dismissed  as  to  one  of  the  alleged  recalcitrant  trustees,  other  trus- 
tees were  appointed  to  fill  existing  vacancies  in  the  board,  the  Polytech- 
nic College  was  to  be  reopened,  and  the  defendant  H.  D.  Cogswell  con- 
sented to  the  entry  of  a  judgment  against  himself  decreeing  that  the 
deed  created  a  valid  and  operative  public  trust.  By  this  stipulation  the 
rights  of  the  wife,  Caroline,  were  protected,  and  her  claims  and  con- 
tentions reserved  for  adjudication.  In  the  action  she  answered  and 
filed  a  cross  complaint.  By  her  answer  she  raised  the  question  of  the 
validity  of  the  trust,  and  by  her  cross  complaint  she  pleaded  that  her 
hearing  was  imperfect,  and  that  she  did  not  know  that  she  had  signed 
the  deed,  nor  did  she  understand  its  full  meaning  and  import.  It  was 
read  to  her  by  the  notary,  but  she  failed  to  hear  or  comprehend  it. 
There  was  no  one  present  to  advise  her  as  to  the  meaning  of  the  deed 
and  its  effect,  or  to  inform  her  of  her  rights.  She  thought  the  papers 
were  for  the  purpose  of  "establishing  a  school  for  those  of  small 
means,"  and  believed  she  was  merely  signing  for  the  incorporation  of 
the  college,  and  was  simply  accepting  the  trust  as  trustee.  She  discov- 
ered, while  the  paper  was  being  read  to  her  by  the  notary,  that  it  pur- 
ported to  be  a  deed  of  some  kind,  because  she  heard  him  read  descrip- 
tions of  land ;  but  she  did  not  know  in  what  way  it  concerned  her,  or 
that  she  had  signed  that  particular  paper.  She  trusted  her  husband, 
who  deceived  her  in  the  matter.  She  had  never  had  independent  ad- 
vice, and  did  not  know  that  under  the  law  the  conveyance,  which  was 
of  community  property,  was  inoperative  unless  she  joined  therein. 
Had  she  known,  she  would  not  have  executed  it.  She  also  pleaded  that 
the  trust  is  in  contravention  of  the  constitutional  inhibition  against  per- 
petuities. The  answer  to  this  cross  complaint  was  a  denial  and  a  plea 
of  the  statute  of  hmitations.  Defendant  Caroline  Cogswell  also  de- 
murred to  the  complaint,  and  her  demurrer  was  overruled. 

The  only  ground  of  demurrer  inviting  consideration  is  that  the  state 
is  not  a  party  in  interest,  and  therefore  has  not  capacity  to  sue.  The 
objection  is  not  sound,  and  the  demurrer  was  properly  overruled.  This 
action  is  based  .upon  averments  of  a  public  trust.  It  is  brought  to  rem- 
edy abuses  in  the  management  of  this  trust.     It  is  not  only  the  right. 


310  EQUITABLE   ESTATES — fSES    AND    TRUSTS 

but  the  duty,  of  the  attorney  general  to  prosecute  such  an  action.  The 
state,  as  parens  patriae,  superintends  the  management  of  all  public 
charities  or  trusts,  and  in  these  matters  acts  through  her  attorney  gen- 
eral. Generally  speaking,  such  an  action  will  not  be  entertained  at  all 
unless  the  attorney  general  is  a  party  to  it.  Such  was  the  rule  at  com- 
mon law,  and  it  has  not  been  changed  in  this  state.  Even  in  those  states, 
such  as  Massachusetts,  where  by  special  statute  the  attorney  general  is 
instructed  to  prosecute  such  actions,  it  is  declared  that  the  statute  does 
not  narrow  or  diminish  in  this  regard  the  common-law  powers  incident 
to  the  office.  Parker  v.  May,  5  Cush.  (Mass.)  336.  The  principle  and 
rule  are  thus  succinctly  stated  in  Attorney  General  v.  Compton,  1 
Younge  &  C.  Ch.  417:  Where  property  affected  by  a  trust  for  public 
purposes  is  in  the  hands  of  those  who  hold  it  devoted  to  that  trust,  it 
is  the  privilege  of  the  public  that  the  crown  should  be  entitled  to  in- 
tervene by  its  officers  for  the  purpose  of  asserting,  on  behalf  of  the 
public  generally,  the  public  interest  and  the  public  right,  which  probably 
no  individual  could  be  found  effectually  to  assert  even  if  the  interest 
were  such  as  to  allow  it.  2  Kent,  Comm.  (10th  Ed.)  359;  Lewin^ 
Trusts,  §  665 ;   1  Daniell,  Ch.  Prac.  §  13 ;   Perry,  Trusts,  §  732. 

2.  It  is  next  contended  that  the  trust  designating  for  its  beneficiaries 
"the  boys  and  girls  of  California"  is_void  for  uncertainty,  because  the 
trustees  are  not  empowered  to  designate  what  "boys  and  girls,  and,  if  all 
applied,  the  trust  would  be  impossible  of  execution.  It  should  scarcely 
be  necessary  to  observe  that  \vhen  the  class  has  been  designated  this 
very  vagueness  and  uncertainty  and  indefiniteness  as  to  individuals  andj 
numbers  is  a  necessary  and  essential  element  to  the  creation  of  a  valid 
charitable  trust.  Perry,  Trusts,  §  710;  Estate  of  Hinckley,  58  Cal. 
488.  It  is  in  discussing  such  trusts  that  the  supreme  court  of  the 
United  States  says  in  Russell  v.  Allen,  107  U.  S.  163,  2  Sup.  Ct.  327. 
27  L.  Ed.  397 :  "They  may,  and  indeed  must,  be  for  the  benefit  of  an 
indefinite  number  of  persons,  for,  if  all  the  beneficiaries  are  personal- 
ly designated,  the  trust  lacks  the  essential  element  of  indefiniteness,. 
which  is  one  characteristic  of  a  legal  charity.  If  the  founder  describes 
the  general  nature  of  the  charitable  trust,  he  may  leave  the  details  of 
the  administration  to  be  settled  by  trustees  under  the  superintendence 
of  a  court  of  chancery.'' 

3.  It  is  claimed  that  the  trust  is  void  as  creating  a  perpetuity  which 
does  not  come  within  the  exception  of  the  constitution  which  forbids 
perpetuities  "except  for  eleemosynary  purposes."  Herein  it  is  argued 
that  "eleemosynary"  pertains  exclusively  to  almsgiving;  that  alms  are 
given  to  the  poor ;  and  that  this  trust  is  generally  for  "the  boys  and 
girls  of  California,"  and  not  specifically  for  the  poor  boys  and  girls. 
From  this  claim  is  made  that  the  constitution  never  meant  to  permit 
perpetuities  for  strictly  educational  purposes,  or  the  word  "eleemosy- 
nary" would  never  have  been  used.  It  may  at  once  be  said  that  the 
trust  creates,  and  is  intended  to  create,  a  perpetuity.  It  may  further 
be  said  that  the  beneficiaries  under  it  are  not  limited  to  the  poor.     But 


CHARITABLE    OR    PUBLIC    TRUSTS  311 

is  it  for  these  reasons  any  the  less  an  eleemos/nary  trust?  It  is  quite 
true  that  the  word  'ieleemosynary"  comes  to  us  from  the  Greek  word 
meaning  "alms,"  but,  while  it  is  always  interesting  to  note  the  origin 
and  first  meanings  of  words,  this  knowledge  is  frequently  more  curious 
than  valuable ;  while  to  insist  that  the  original  meaning  shall  govern 
the  word  in  its  modern  use  and  acceptation  is  very  rarely  permissble. 
It  is  in  this  way  interesting  to  note  that  "sycophant"  comes  from  Greek 
words  meaning  "fig  informer" ;  but  it  would  scarcely  be  contended  to- 
day that  a  man  could  not  properly  be  called  a  sycophant  unless  he  had 
dealings  in  figs.  In  short,  words  by  use  are  sometimes  degraded,  some- 
times ennobled;  sometimes  narrowed  in  meaning,  sometimes  broad- 
ened. 

"Eleemosynary"  has  come  in  the  law  to  be  interchangeable  with  the 
word  "charitable."  A  charitable  trust  or  a  charity  is  a  donation  in 
trust  for  promoting  the  welfare  of  mankind  at  large,  or  of  a  communi- 
ty, or  of  some  class  forming  a  part  of  it,  indefinite  as  to  numbers  ajid 
individuals.  It  may,  but  it  need  not,  confer  a  gratuitous  benefit  upon 
the  poor.  It  may,  but  it  need  not,  look  to  the  care  of  the  sick  or  in- 
sane. It  may,  but  it  need  not,  seek  to  spread  religion  or  piety.  Schools 
and  libraries,  equally  with  asylums,  hospitals,  and  religious  institutions, 
are  included  within  its  scope.  It  is  impossible  to  enumerate  specifically 
all  purposes  for  which  an  eleemosynary  trust  may  be  created.  The  dif- 
ficulty is  inherent  in  the  subject-matter  itself.  With  the  progress  of 
civilization  new  needs  are  developed,  new  vices  spring  up,  new  forms 
of  human  activity  manifest  themselves,  any  or  all  of  which,  for  their 
advancement  or  suppression,  may  become  the  proper  object  of  an  elee- 
mosynary trust.  As  was  said  by  this  court  in  People  v.  Association,  84 
Cal.  114,  24  Pac.  277,  12  L.  R.  A.  117:  "The  enforcement  of  charitable 
uses  cannot  be  limited  to  any  narrow  and  stated  formula.  As  has  been 
well  said,  it  must  expand  with  the  advancement  of  civilization  and  the 
daily  increasing  needs  of  men.  New  discoveries  in  science,  new  fields 
and  opportunities  for  human  action,  the  differing  condition,  character, 
and  wants  of  communities  and  nations,  change  and  enlarge  the  scope  of 
charity ;  and,  where  new  necessities  are  created,  new  charitable  uses 
must  be  established.  The  underlying  principle  is  the  same ;  'its  applica- 
tion is  as  varying  as  the  wants  of  humanity." 

The  objects  and  purposes  of  the  present  trust  are  purely  charitable. 
The  mode  of  effectuating  the  charity  by  the  erection  and  maintenance 
of  a  polytechnic  college  is  clearly  set  forth.  The  salaries  of  the  pro- 
fessors, teachers,  and  instructors  are  to  be  paid  out  of  the  trust  funds. 
Suitable  college  buildings  are  to  be  provided.  Tuition  is  to  be  absolute- 
ly free  so  long  as  the  resources  of  the  trust  will  permit,  and  when  a 
tuition  fee  is  charged  it  is  only  to  aid  in  maintaining  the  institution. 
Nothing  is  reserved  for  profit  or  gain.  All  goes  to  the  spread  of  tech- 
nical knowledge,  and  to  the  gratuitous  instruction  in  the  mechanic  arts 
of  the  boys  and  girls  of  the  state.  Such  a  trust  is  in  conformity  with 
the  act  of  1885,  and  that  act  in  no  way  contravenes  the  provisions  of 


312  EQUITABLE   ESTATES — USES    AND    TRUSTS 

section  9,  art.  20,  of  our  constitution.  Dartmouth  College  v.  Wood- 
ward, 4  Wheat.  518,  4  L.  Ed.  629;  Vidal  v.  Girard's  Ex'rs,  2  How. 
127,  11  L.  Ed.  205 ;  Russell  v.  Allen,  107  U.  S.  163,  2  Sup.  Ct.  327,  27 
L.  Ed.  397;  American  Academy,  etc.,  v.  President,  etc.,  of  Harvard 
College,  12  Gray  (Mass.)  582 ;  Whicker  v.  Hume,  7  H.  L.  Cas.  124 ; 
President  of  United  States  of  America  v.  Drummond,  33  Beav. 
449     *     *     * 

Other  findings  are  against  the  averments  of  defendants'  answer  that 
the  trust  had  been  abandoned  by  the  trustees ;  that  they  had  made  an 
improper  lease  of  the  trust  property,  and  had  violated  their  trust ;  that 
the  trust  had  become  impracticable,  and  that,  therefore,  the  property 
had  reverted,  and  should,  in  equity,  be  decreed  to  have  reverted,  to  the 
founders.  A  trust  in  this  state  is  not  extinguished,  nor  does  the  prop- 
erty revert,  .for  any  of  these  reasons.  If  the  trustees  abandon,  or  in 
any  way  abuse,  their  trust,  equity  will  correct  the  abuser,  and  remove 
the  offenders.  A  trust Js  extinguished  by  the  entire,  fulfillment  of  its 
object,  by  its  object  becoming  impossible,  or  by  its  object  becoming 
unlawful.  Civ.  Code,  §  2279.  No  one  of  these  contingencies  has  arisen, 
and  the  court  was  right  in  finding  that  the  object  of  the  trust  had  not 
become  impracticable.  The  founders  had  reserved  no  power  of  revoca- 
tion (Civ.  Code,  §  2280),  and  the  acts  complained  of  were  mere  abuses, 
which,  in  the  absence  of  an  express  condition  to  that  effect,  did  not 
work  a  reversion,  but  merely  warranted  the  interposition  of  equity  for 
their  correction.  Perry,  Trusts,  §  744;  Brown  v.  Society,  9  R.  I.  177; 
Barr  v.  Weld,  24  Pa.  84;  Stanley  v.  Colt,  5  Wall.  119,  18  L.  Ed.  502; 
Attorney  General  v.  Town  of  Dublin,  38  N.  H.  459;  Sanderson  v. 
White,  18  Pick.  (Mass.)  328,  29  Am.  Dec.  591.  The  judgment  and  or- 
der appealed  from  are  affirmed. 

We  concur:     McFarland,  J.;    Temple,  J. 


KENT  v.  DUNHAM. 

Coapreme  Judicial  Court  of  Massachusetts,  1SS6.     142  Mass.  216,  7  N.  E.  730, 

56  Am.  Rep.  667.) 

This  was  a  bill  in  equity  by  the  plaintiffs,  heirs  at  law  of  Josiah  Dun- 
ham, deceased,  praying  that  the  will  of  the  said  Dunham  be  annulled, 
and  adjudged  invalid  and  of  no  effect,  so  far  as  it  contained  a  residu- 
ary clause,  which  clause,  together  with  the  facts,  appear  in  the  opin- 
ion. The  defendants  demurred  to  the  bill.  Hearing  in  the  supreme 
court  before  C.  Allen,  J.,  who  reserved  the  case  for  the  full  court. 

Devens,  J.  The  gift  to  "Samuel  Leeds  and  Josiah  Dunham,  Jr., 
their  heirs  and  assigns,  forever,  and  to  the  survivors  of  them,  and  his 
heirs,  forever,  in  trust,  to  sell,  dispose  of,  invest,  and  manage  the 
same,  and  appropriate  such  part  of  the  principal  and  interest  as  they 
may  deem  best  for  the  aid  and  support  of  those  of  my  children,  and 
their  descendants,  who  may  be  destitute,  and,  in  the  opinion  of  the 


CHARITABLE   OR   PUBLIC   TRUSTS  313 

trustees,  need  such  aid,"  will  not  admit  of  being  construed  as  a  gift 
to  the  testator's  children  and  their  descendants  who  might  be  living 
at  the  time  of  the  testator's  decease,  or  that  of  the  last  of  his  children. 
The  language  used,  as  well  as  the  declared  purpose,  show  that  it  is  a 
gift  in  trust  for  the  benefit  of  those  who  should  thereafter,  through- 
out an  indefinite  period  of  time,  being  descendants  of  the  testator,  be- 
come destitute  and  in  need  of  aid  and  support.  The  words  import 
that  the  bequest  is  ultimately  to  be  administered  by  others  than  the 
trustees  named,  and  that  the  testator  has  not  sought  to  repose  a  special 
confidence  in  them  exclusively,  but  to  establish  a  permanent  trust,  for 
which  trustees  were  ultimately  to  be  appointed  according  to  ordinary 
rules  of  courts  of  equity.  That  such  a  gift  is  too  remote,  as  tending 
to  create  a  perpetuity,  when  it  is  to  be  held  for  the  benefit  of  those 
who  may  not  have  been  living  at  the  time  of  the  testator's  death,  or 
that  of  his  children,  and  who  may  not  come  into  being  until  many 
years  thereafter,  cannot  be  controverted,  unless  it  can  be  sustained  as 
a  pubhc  charity.  Nightingale  v.  Burrell,  15  Pick.  104;  Brattle  Square 
Church  v.  Grant,  3  Gray,  142,  63  Am.  Dec.  725 ;  Sears  v.  Russell,  8 
Gray,  86;  Thorndike  v.  Loring,  15  Gray,  391.  The  attorney  general 
has  therefore  been  made  a  party  to  this  bill,  as  well  as  all  the  demand- 
ants of  the  testator.    Jackson  v.  Phillips,  14  Allen,  539. 

A  public  or  charitable  trust  may  be  indefinite  in  duration,  and  its 
general  object  or  purpose,  as  indicated,  being  charitable,  the  applica- 
tion and  selection  of  the  particular  objects  or  individuals  who  are  to  re- 
ceive its  benefits  may  be  confided  to  those  who  are  its  trustees.  That 
a  gift  should  have  this  character  there  must  be  some  benefit  to  be  con- 
ferred upon,  or  duty  to  be  preferred  towards,  either  the  public  at  large, 
or  some  part  thereof,  or  an  indefinite  class  of  persons.  If  a  trust  were 
created  for  the  benefit  of  the  poor  of  a  particular  town  or  parish,  or  of 
persons  of  a  specified  class  or  occupation,  as  seamen,  laborers,  or  me- 
chanics, it  would  not  be  doubted  that  it  would  be  good  as  a  charity. 
So,  if  a  sum  were  bequeathed,  the  income  of  which,  from  time  to  time, 
or  in  the  discretion  of  the  trustees,  was  to  be  applied  to  the  relief  of 
the  destitute,  by  distribution  of  fuel  or  provisions,  or  in  any  other 
similar  defined  mode,  or  as  the  trustees  might  deem  most  expedient, 
the  gift  w^ould  be  enforced  as  a  public  charity. 

The  gift  in  the  case  at  bar  is  solely  for  the  benefit  of  the  children  of 
the  testator,  and  their  descendants.  The  only  public  interest  that  there 
can  ^e  in  connection  with  it  is  that  where,  as  there  may  be  hereafter, 
certain  destitute  persons,  descendants  of  the  testator,  who  might  other- 
wise become  a  public  charge,  they  will  be  entitled  to  relief  from  this 
fund.  This  legacy,  it  will  be  observed,  is  readily  distinguishable  from 
one  by  which  the  income  of  a  fund  is  devoted  to  the  poor  of  a  par- 
ticular town  or  parish,  preference  being  given  to  the  descendants  or 
the  relations  of  the  testator.  In  such  a  donation  there  is  a  public  ob- 
ject, as  they  are  thus  provided  for  only  as  a  part  of  the  poor  who 
are  to  receive  the  benefit  of  the  charity,   although  a  preference   is 


314  EQUITABLE   ESTATES — USES    AND    TRUSTS 

given  them,  on  account  of  their  descent  or  relationship,  in  its  distribu- 
tion. 

There  were  certain  English  cases  which,  as  the  trustees  contend,  of- 
fered strong  ground  for  holding  this  legacy  to  be  public  charity.  In 
Attorney  General  v.  Bucknall,  2  Atk.  328,  (1741,)  the  point  decided 
was  that  any  person,  though  the  most  remote  in  the  contemplation  of 
the  charity,  might  be  a  relator  in  an  information  in  reference  thereto. 
The  facts,  as  stated  in  the  note,  do  not  show  that  any  question  arose 
as  to  whether  the  bequest  was  a  public  charity;  the  only  inquiry  ap- 
parently being  whether  the  relator  was  one  of  the  poor  relations  who 
were  the  objects  of  the  bounty.  In  White  v.  White,  7  Ves.  423,  (1802,) 
it  was  held  that  a  bequest  to  poor  relations  of  two  families  for  putting 
out  their  children  as  apprentices,  the  duration  of  which  would  have 
exceeded  the  limits  allowed  by  law,  unless  it  was  a  public  charity, 
might  be  executed  by  putting  out  those ,  who  were  then  ready  as 
apprentices.  There  was  no  discussion  of  the  subject  in  the  opinion  of 
the  master  of  the  rolls,  Sir  William  Grant.  In  Attorney  General  v. 
Price,  17  Ves.  371,  (1810,)  there  was  a  direction  to  pay  £20  per  an- 
num to  the  testator's  poor  relations  in  the  county  of  Brecon,  which 
was  held  good  as  a  charity,  apparently  upon  the  authority  of  Isaac 
V.  Defriez,  Amb.  595,  and  on  the  ground  that  it  was  entitled  to  have 
perpetual  continuance  for  the  benefit  of  a  particular  class  of  poor.' 
In  Gillam  v.  Taylor,  L.  R.  16  Eq.  Gas.  581,  it  was  held  that  where  the 
testator  gave  the  residue  of  his  real  and  personal  estate  to  trustees 
for  investment  in  their  joint  names,  and  directed  the  interest  from 
time  to  time  to  be  paid  to  such  lineal  descendants  as  they  might  sever- 
ally need,  that  the  gift  was  charitable,  and  that  it  need  not  be  distribut- 
ed to  those  actually  poor,  but  only  to  those  relatively  so,  and  thus  that, 
if  all  the  relations  except  one  had  £20,000  a  year,  and  the  latter 
£10,000  a  year,  he  would  be  entitled.  This  decision  is  treated  with  but 
scant  respect  in  Attorney  General  v.  Northumberland,  L.  R.  7  Ch.  Div. 
745,  by  Sir  George  Jessel,  M.  R.,  where  it  is  said  that  such  a  charity 
would  only  be  good  in  favor  of  those  actually  poor.  In  this  latter  case 
the  gift  gave  only  a  preference  to  the  relations  of  the  testator  in  the 
distribution  of  the  income  of  the  trust  fund  to  the  poor,  which  was 
provided  for  annually. 

These  cases  do  not  fully  sustain  the  position  that  the  legacy  here  in 
question  can  be  upheld  as  a  public  charity.  In  all  of  them  there  were 
persons  so  situated  as  to  be  entitled  to  the  benefit  of  the  charity,  so 
that  an  indefinite  accumulation  was  not  to  be  permitted  in  favor  of  a 
class  which  might  never  have  an  existence,  or  might  never  come  into 
existence  within  any  period  of  tijne  when  its  connection  with  the  testa- 
tor could  be  traced. 

Bequests  in  favor  of  poor  relations  also  are  for  a  far  more  extensive 
class  than  descendants.  While  the  failure  of  issue,  and  thus  the  ter- 
miiiation  of  the  line  of  lineal  descent,  is  comparatively  common,  the 
ancestors  of  every  person  are  indefinitely  numerous,  and  there  can  be 


CHARITABLE    OR   PUBLIC   TRUSTS  315 

no  failure  of  collateral  relations,  except  such,  as  may  arise  from  the 
impossibility  of  tracing  the  descent  of  the  testator. 

Without  desiring  to  express  any  opinion  as  to  whether  we  should 
hold  it  to  be  our  duty  to  follow  the  doctrine  of  these  cases  if  the  ques- 
tion presented  by  the  case  at  bar  was  fairly  within  them,  the  reasons 
why  the  gift  of  the  testator  cannot  be  sustained  as  a  public  charity  ap- 
pear to  us  entirely  sufficient.  It  is  the  policy  of  the  law  to  prevent 
indefinite  accumulation  of  property  for  the  benefit  of  individuals.  The 
descendants  of  the  testator  are  now,  and  have  been  since  his  decease, 
in  comfortable  circumstances.  Not  only  may  a  long  time  elapse  before 
any  descendant  will  exist  who  can  be  termed  "a  destitute  person,"  but 
such  a  time  may  practically  never  occur,  as  it  may  be  at  so  distant  a 
period  that  descent  cannot  be  traced,  or  the  event  of  the  failure  of 
descent  from  the  testator  may  render  it  impossible  that  it  should  ever 
occur.  In  the  expectation  of  the  remote  contingency  that  there  shall 
be  a  descendant  who  is  a  destitute  person,  the  fund  is  to  be  permitted 
to  accumulate  if  the  will  of  the  testator  is  followed.  If  the  line  of 
descent  from  the  testator  fails,  it  will  have  been  accumulated  for  his 
heirs,  it  may  be,  in  a  remote  generation.  There  is  no  general  public 
object  sufficient  to  justify  this  accumulation  in  the  possible  advantage 
which  the  public  may  obtain  by  having  the  descendants  of  the  testator 
protected  from  beggary,  and  thus  from  becoming  a  public  charge.  To 
establish  as  a  permanent  charity  a  provision  for  a  single  family,  and 
thus,  it  may  be,  to  prevent  an  indefinite  accumulation  of  property  which 
might  eventually  be  solely  for  the  benefit  of  the  testator's  heirs,  and 
those  who  may  claim  under  them,  would  be  foreign  to  the  general  prin- 
ciples of  our  law  on  this  subject,  and  cannot  be  justified  by  so  slight 
a  prospective  public  benefit. 

The  result  is  that  the  portion  of  the  eighth  clause  of  the  testator's 
will  which  seeks  to  establish  a  trust  in  two-thirds  of  the  residue  of 
his  estate  for  the  benefit  of  his  children  and  their  descendants  "who 
may  be  destitute,  and,  in  the  opinion  of  said  trustees,  need  such  aid," 
must  be  deemed  to  be  invalid  and  without  effect.    Demurrer  overruled. 


3.  Doctrine;  op  Cy  Pri^s 


See  Jackson  v.  Phillips,  ante,  p.  269. 


316  ESTATES   IN   EXPECTANCY 


ESTATES  IN  EXPECTANCY 
I.  Reversions  ^ 


See  Hobson  v.  Huxtable,  below. 


II.  Possibilities  of  Reverter* 


See  Proprietors  of  Church  in  Brattle  Square  v.  Grant,  ante,  p.  212. 


III.  Future  Estates — At  Common  Law  • 
1.  Vested  Remainders 


HOBSON  V.  HUXTABLE. 
(Supreme  Court  of  Nebraska,  1908.    79  Neb.  340,  116  N.  W.  278.) 

On  rehearing.  Former  opinion  and  the  decree  of  the  district  court 
vacated  and  decree  rendered. 

For  former  opinion,  see  112  N.  W.  658. 

Root,  C*  In  79  Neb.  334,  112  N.  W.  658  et  seq.,  may  be  found  a 
statement  of  the  facts  in  this  case.  A  rehearing  has  been  granted 
and  the  entire  record  presented  for  our  consideration. 

1.  The  defendants  Huxtable  insist  that  the  record  does  not  dis- 
close that  Anna  E.  Hobson  owned  the  real  estate  in  litigation  in  fee 
simple;  that  they  stipulated  only  that  she  died  seised  of  the  real  es- 
tate; that  seisin  may  be  for  life  or  for  years,  and  fall  far  short  of 
an  estate  in  fee  simple;  that,  as  they  had  interposed  the  defense  of  title 
by  adverse  possession,  the  heirs  of  Anna  E.  Hobson  must  trace  their 
title  back  to  the  United  States.  We  do  not  think  it  necessary  to  de- 
cide the  legal  definition  of  the  word  "seisin,"  because  it  was  used 
in  this  case  evidently  as  a  synonym  for  title  in  fee  simple.  The  tes- 
timony of  the  witness  Tomkins  further  establishes  that  Mrs.  Hob- 
son purchased  the  farm  some  10  years  before  her  death,  and  resided 
thereon  with  her  family  from  the  time  she  acquired  the  land  until 
she  died. 

1  For  discussion  of  principles,  see  Burdicli,  Real  Prop.  §  138. 

2  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  139. 

8  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  140-149. 
*  Part  of  the  opinion  is  omitted. 


FUTURE    ESTATES — AT   COMMON   LAW  317 

2.  It  is  claimed  that  the  children  of  Anna  E.  Hobson  did  not  take 
a  vested  estate  in  remainder  upon  the  death  of  their  mother.  We 
cannot  agree  with  counsel.  The  writers  refer  to  the  estate  included 
within  the  homestead  as  a  life  estate  for  the  surviving  spouse,  and 
either  a  remainder  or  reversion  in  the  heirs.  "A  remainder  is  a  rem- 
nant of  an  estate  in  land,  depending  upon  a  particular  prior  estate 
created  at  the  same  time,  and  by  the  same  instrument,  and  limited  to 
arise  immediately  on  the  determination  of  that  estate,  and  not  in 
abridgment  of  it."  4  Kent,  Commentaries  (13th  Ed.)  197.  "A  rever- 
sion is  a  return  of  the  land  to  the  grantor  and  his  heirs  after  the 
grant  is  over."  4  Kent,  Commentaries  (13th  Ed.)  353.  In  Caldwell 
V.  Pollak,  91  Ala.  353,  8  South.  546,  the  estates  are  referred  to  as 
"a  homestead  exemption,  actually  and  rightfully  interposed,  has  the 
effect  in  law  of  dividing  the  freehold  into  two  quasi  ownerships,  the 
one  for  life,  and  the  other  in  remainder."  The  title  in  the  succession 
of  a  homestead  is  not  evidenced  by  written  grant,  but  arises  from 
seisin,  the  family  relation  and  residence,  and  those  facts  take  the 
place  of  the  written  instrument  that  usually  evidences  the  prior  estate 
and  the  one  in  remainder.  The  nature  of  the  estate  devolving  upon 
the  heirs  at  the  death  of  the  fee-holding  spouse  is  settled  as  squarely 
as  the  decision  of  this  court  can  establish,  any  principle  of  law,  and 
is  not  open  to  question.  In  Schuyler  v.  Hanna,  31  Neb.  308,  47  N.  W. 
933,  we  held,  "Under  section  17  of  the  homestead  law  of  1879  (Laws 
1^79,  p.  61),  that  the  heirs  of  the  person  whose  property  has  been 
selected  for  a  homestead  took  a  vested  remainder  therein,  subject  to 
the  life  estate  of  the  surviving  husband  or  wife."  In  Fort  v.  Cook, 
3  Neb.  (Unof.)  12,  90  N.  W.  634,  Mr.  Commissioner  Hastings  re- 
views the  case  of  Schuyler  v.  Hanna,  and  clearly  demonstrates  that  the 
estate  of  the  heir  vests  upon  the  death  of  the  parent.  Durland  v. 
Seller,  27  Neb.  33,  42  N.  W.  741 ;  Cooley  v.  Jansen,  54  Neb.  33,  74 
N.  W.  391. 

3.  It  is  asserted  that  an  action  to  quiet  title  cannot  be  maintained  by 
the  heirs  during  the  lifetime  of  the  surviving  spouse.  Our  statutes 
plainly  give  the  right.  Sections  57,  58,  59,  c.  73,  Comp.  St.  1907  (sec- 
tions 4814—4816).  Section  59  is  surplusage,  unless  it  extends  that 
right  to  the  remaindermen:  "Any  person  or  persons  having  an  in- 
terest in  remainders  or  reversion  in  real  estate  shall  be  entitled  to  all 
the  rights  and  benefits  of  this  act."  Upon  the  termination  of  the 
prior  estate,  those  who  were  remaindermen  or  reversioners  cease  to 
hold  the  title  by  that  description,  and  would  fall  within  the  class  re- 
ferred to  in  section  57,  supra.  Wa  have  held  the  action  could  be 
maintained  before  the  surviving  spouse  departs  this  life.  Holmes  v. 
Mason,  80  Neb.  448,  114  N.  W.  606.  We  also  held  in  said  case  that 
the  statute  of  limitations  bars  that  right,  unless  exercised  within  10 
years  of  the  time  the  cause  for  action  accrues ;  the  heirs  being  adults. 

It  is  said  that  the  action  may  still  be  maintained  by  all  the  heirs  of 


318  ESTATES    IN    EXPECTAXCT 

Anna  E.  Hobson  because  commenced  within  10  years  of  the  date  the 
youngest  child  attained  his  majority ;  that  the  cause  of  action  is  an 
entirety  and  cannot  be  severed,  and  hence  good  as  to  one  is  good  as 
to  all.  'Thompson  v.  Wiggenhorn,  34  Neb.  725,  52  N.  W.  405,  is  cited 
to  sustain 'this  proposition.  In  that  case  an  infant  had  the  right  to 
rebuild  a  burned  mill,  whereas,  if  he  had  been  an  adult  at  the  time 
his  ancestor  died,  he  would  have  forfeited  that  privilege.  The  other 
heirs  of  the  deceased  were  adults  when  the  father  died,  and  it  was 
held  the  forfeiture  could  not  apply  to  one  joint  owner  and  not  to  the 
others,  because  the  two  buildings  could  not  at  the  one  time  occupy  the 
same  space,  and,  if  the  statute  worked  a  forfeiture  as  to  the  adults 
and  not  as  to  the  infant,  the  impossible  condition  of  two  persons  or 
sets  of  persons  each  having  the  exclusive  right  to  construct  a  building 
within  the  same  space  at  the  same  time  would  exist.  The  rule  does 
not  apply  in  the  instant  case,  because  each  one  of  two  or  more  tenants 
in  common  may  maintain  a  separate  action  for  the  protection  or  re- 
covery of  his  estate,  and  he  may  not  litigate  as  to  other  than  his  own 
interests  in  the  land.  Johnson  v.  Hardy,  43  Neb.  368,  61  N.  W.  624. 
47  Am.  St.  Rep.  765.  We  are  also  cited  to  authorities  holding  that 
the  statute  does  not  commence  to  run  against  the  remainderman  or  re- 
versioner until  he  has  a  right  of  entry,  and  this  we  do  not  deny  as 
to  actions  for  the  possession  of  real  estate.  Allen  v.  De  Groodt,  98 
Mo.  159,  11  S.  W.  240,  14  Am.  St.  Rep.  626.  and  monographic  note 
commencing  on  page  628;  Smith  v.  McWhorter,  123  Ga.  287,  51  S. 
E.  474^  107  Am.  St.  Rep.  85 ;  Hanson  v.  Ingwaldson,  71  Minn.  533. 
80  N.  W.  702,  77  Am.  St.  Rep.  692;  McCorry  v.  King's  Heirs,  3 
Humph.  (Tenn.)  267,  39  Am.  Dec.  166-171.     *     *     * 


In  re  KENYON. 
(Supreme  Court  of  Rhode  Island,  1890.    17  R.  I.  149,  20  Atl.  294.) 

Case  stated  for  opinion  of  the  court  under  Pub.  St.  R.  I.  c.  192, 
§  23. 

The  last  will  and  testament  of  George  C.  Kenyon,  late  of  East 
Greenwich,  duly  proven,  is  as  follows : 

"I,  George  C.  Kenyon,  of  East  Greenwich,  in  the  county  of  Kent, 
and  state  of  Rhode  Island,  do  make  and  publish  this  my  last  will  and 
testament  in  manner  following: 

"First.  After  the  payment  of  my  just  debts  and  the  expenses  of 
settling  my  estate,  I  give  and  bequeath  all  my  estate,  both  real  and 
personal,  of  whatever  kind  or  nature,  of  which  I  shall  die  possessed, 
to  Simeon  F.  Perry,  of  Westerly^  in  the  county  of  Washington,  and 
state  of  Rhode  Island,  and  his  heirs,  to  have  and  to  hold,  for  and  dur- 
ing the  natural  life  of  my  son,  Daniel  C.  Kenyon,  in  trust,  to  collect 
the  rents  and  profits  of  the  property  hereby  devised ;  and  after  the  pay- 


FUTURE    ESTATES — AT   COMMON   LAW  319 

ment  of  all  taxes  and  assessments  thereon,  and  for  necessary  repairs 
thereto,  to  pay  over  the  balance  to  my  said  son,  Daniel  C.  Kenyon. 
And  I  further  authorize  and  empower  said  trustee,  whenever  in  his 
judgment  it  shall  be  necessary  or  proper  to  raise  money  for  the  pur- 
pose of  paying  off  incumbrances  on  said  property,  or  for  making  re- 
pairs, additions,  or  improvements  thereto,  or  to  any  part  thereof,  or 
if,  in  his  judgment,  some  other  investment  shall  be  more  advantageous 
or  profitable,  or  whenever  he  shall  deem  the  income  or  profits  arising 
from  said  property  insufficient  to  secure  the  necessary  support  and 
sustenance  of  the  said  Daniel  C.  Kenyon,  or  for  his  advancement  in 
life,  to  sell  or  mortgage  or  lease  for  a  term  of  years,  with  the  written 
consent  of  the  said  Daniel  C.  Kenyon,  the  above-devised  property,  or 
any  part  thereof,  for  the  best  prices  that  can  be  obtained  therefor. 
And  the  duly-executed  deed  of  conveyance  of  said  trustee,  with  the 
written  consent  of  the  said  Daniel  C.  Kenyon  attached  thereto,  or  in- 
corporated therewith,  shall  in  all  cases  vest  a  clear  and  complete  title 
in  the  purchaser  thereof,  free  from  the  provisions  of  this  trust.  And 
it  shall  be  the  duty  of  said  trustee,  with  the  written  consent  of  said 
Daniel  C.  Kenyon,  to  invest  the  proceeds  of  such  sales  not  necessary 
for  the  payment  of  incumbrances  on  said  property,  or  for  repairs 
thereof,  or  for  the  necessary  support  and  advancement  of  said  Daniel 
C.  Kenyon,  in  suitable  improvements  upon  the  remaining  property, 
or  in  other  secure  and  productive  property.  And  all  property  pur- 
chased shall  be  ^eld  by  the  trustee  under  the  same  title  and  conditions, 
and  with  the  same  powers  and  privileges,  as  the  property  originally 
devised  to  him,  and  for  such  sums  as  said  trustee  shall  expend  in  the 
sustenance,  support,  and  advancement  of  the  said  Daniel  C.  Kenyon ; 
the  receipt  of  said  Daniel  C.  Kenyon  shall  be  a  sufficient  discharge  for 
said  trustee:  provided,  however,  that  if  the  said  Simeon  F.  Perry 
shall  die  in  my  life-time,  and  no  other  trustee  shall  have  been  duly  ap- 
pointed by  me  in  my  life-time,  the  above  bequest  shall  then  vest  in 
the  person  who  at  the  time  of  my  death  shall  be  or  shall  be  acting  as 
town-clerk  of  East  Greenwich  aforesaid  and  his  heirs,  until  a  trustee 
can  be  appointed  as  hereinafter  provided,  except  that' the  said  town- 
clerk  or  his  heirs  shall  have  no  power  to  sell  or  otherwise  convey  any 
of  the  property  hereby  devised ;  and  provided,  further,  that,  if  the  con- 
tingency mentioned  in  the  last  clause  shall  happen,  or  if  the  said 
Simeon  F.  Perry,  or  any  other  trustee,  shall  die  during  the  continu- 
ance of  this  trust,  or  shall  become  incapable  of  fulfilling  the  duties 
thereof,  or  shall  refuse  to  perform  them,  I  hereby  authorize  and  em- 
power the  supreme  court  of  this  state,  sitting  in  any  county  thereof, 
to  appoint  another  trustee ;  and  upon  such  appointment  the  above  be- 
quest as  regards  the  person,  or  the  heirs  of  the  person  so  deceased  or 
superseded  shall  cease  and  determine,  and  shall  vest  in  full  force  with 
the  same  powers  and  privileges,  and  subject  to  the  same  conditions,  in 
the  person  so  appomted. 


320  ESTATES    IN    EXPECTANCY 

"Second.  After  the  decease  of  said  Daniel  C.  Kenyon,  I  give  and  be- 
queath all  the  property  affected  by  the  above  trust  which  shall  then  re- 
main to  my  own  right  heirs. 

"Third.  I  appoint  said  Simeon  F.  Perry  executor  of  this  my  last 
will  and  testament,  and  hereby  revoke  all  former  wills  and  testaments 
by  me  made. 

"In  testimony  whereof  I  have  hereunto  set  my  hand  this  thirty-first 
of  the  seventh  month,  A.  D.  1863.    George  C.  Kenyon. 

"Signed,  published,  and  declared  by  George  C.  Kenyon  as  and  for 
his  last  will  and  testament  in  our  presence,  who  have,  at  his  request, 
in  his  presence,  and  in  presence  of  each  other,  set  our  names  as  wit- 
nesses.    Ebenezer  Slocum.     David  C.  Potter.     Joseph  W.  Congdon." 

After  the  death  of  Daniel  C.  Kenyon,  childless  and  intestate,  the 
administrator  of  his  estate  and  the  then  heirs  at  law  of  George  C. 
Kenyon  presented  this  petition  to  the  court  to  determine  what  disposi- 
tion was  made  by  the  will  of  the  latter  of  the  remainder  after  trustee's 
estate  for  the  life  of  Daniel  C.  Kenyon. 

DuRFEE,  C.  J.  The  case  stated  shows  that  George  C.  Kenyon  died 
at  East  Greenwich  in  1874,  leaving  real  and  personal  estate,  and  one 
son,  Daniel  C.  Kenyon,  his  only  heir  at  law.  He  left  a  will  by  the 
first  clause  of  which  he  devised  and  bequeathed  all  the  residue  of  his 
estate,  after  payment  of  his  debts,  "to  Simeon  F.  Perry  *  *  * 
and  his  heirs,  to  have  and  to  hold,  for  and  during  the  natural  life  of 
my  son,  Daniel  C.  Kenyon,"  in  trust  for  said  Daniel,  with  power  to 
sell,  mortgage,  or  lease  the  same,  with  said  Daniel's  written  consent, 
for  the  purpose  of  paying  off  incumbrances,  making  repairs,  improving 
the  investment,  or  raising  money  for  the  necessary  support  or  for  the 
advancement  of  said  Daniel.  The  second  clause  is  as  follows,  to-wit : 
"After  the  decease  of  said  Daniel  C.  Kenyon,  I  give  and  bequeath  all 
the  property  affected  by  the  above  trust  which  shall  then  remain  to  my 
own  right  heirs."  Daniel  C.  Kenyon  died  in  1887,  without  issue.  The 
estate  remaining  is  claimed  on  the  one  hand  by  persons  who,  if  the 
testator  had  died  childless,  would  have  been  at  the  time  of  his  death, 
and  who  are  ndw,  his  sole  heirs  at  law.  On  the  other  hand  it  is  claim- 
ed by  the  administrator  on  the  estate  of  Daniel  C.  Kenyon  as  said 
Daniel's  estate,  liable  as  such  for  the  payment  of  his  debts,  his  claim 
being  that  it  vested  in  said  Daniel  under  said  Second  clause,  by  way 
of  remainder,  at  the  death  of  the  testator,  said  Daniel  being  the  testa- 
tor's only  "right  heir."  We  are  asked  to  say  which  of  the  two  claims 
is  right. 

It  is  contended  for  the  heirs  at  law  that  the  estate  could  not  pass 
under  the  second  clause  as  a  remainder,  because  it  was  given  by  the 
first  clause  to  Simeon  F.  Perry  in  fee-simple,  after  which  there  can 
be  no  remainder.  The  second  clause,  it  is  argued,  could  only  take 
effect  by  way  of  executory  devise.  We  are  not  convinced  by  the  argu- 
ment. It  is  true  that  the  residuary  estate  is  gtven  to  Simeon  F. 
Pcrrv  "and  his  heirs,"  but  nevertheless  it  is  only  given  to  him  and  his 


FUTURE   ESTATES — AT  COMMON   LAW  321 

heirs  for  and  during  the  natural  life  of  Daniel  C.  Kenyon,  and  in  our 
opinion  the  devise,  correctly  interpreted,  creates  only  an  estate  pur 
autre  vie ;  i.  e.,  for  the  life  of  said  Daniel,  the  heirs  of  said  Perry  tak- 
ing after  him,  if  he  had  died  before  said  Daniel,  as  special  occupants. 
Carpenter  v.  Dunsmure,  3  El.  &  Bl.  918;  Doe  v.  Robinson,  8  Barn. 
&  C.  296 ;  Atkinson  v.  Baker,  4  Term  R.  229.  See,  also.  Doe  v.  Con- 
sidine,  6  Wall.  458,  18  L.  Ed.  869,  v^here  an  estate  devised  to  a  trustee 
and  his  heirs  for  objects  terminating  with  lives  in  being,  with  re- 
mainder over,  was  held  to  be  constructively  only  an  estate  pur  autre 
vie,  such  an  estate  being  sufficient  for  all  the  purposes  of  the  trust. 
We  think  there  was  nothing  to  prevent  the  estate  from  passing  under 
said  clause  by  way  of  remainder. 

It  is  contended  for  the  heirs  at  law  that  the  language  of  the  first 
clause  is  such  as  shows  an  intent  on  the  part  of  the  testator  to  give 
to  his  son,  Daniel,  only  an  estate  for  life.  The  first  clause  clearly 
shows  an  intent  to  put  the  estate,  during  the  life  of  this  son,  in  the 
trammels  of  a  trust,  but  it  does  not  in  express  terms  limit  the  son  to 
the  estate  so  put  in  trust,  nor  use  any  language  which  is  necessarily 
inconsistent  with  his  taking  in  remainder.  It  is  urged  that  the  powers 
given  to  the  trustee  to  dispose  of  the  entire  estate  for  the  son's  benefit, 
but  not  without  the  son's  written  consent,  would  not  have  been  given  • 
so  if  the  testator  had  intended  to  have  his  son  take  not  only  the  equita- 
ble life-estate,  but  also  the  legal  remainder.  We  do  not  think  this  is 
clear,  since  the  powers,  if  not  necessary,  might  be  convenient,  and 
would  tend  to  give  the  trustee  a  restraining  and  protective  influence. 
The  great  obstacle  to  the  construction  contended  for  by  the  heirs  at 
law  is  that  the  estate  was  given  by  the  testator  in  remainder  to  his 
"own  right  heirs,"  and  the  son  answered  to  that  description  at  the 
testator's  death.  We  are  bound  to  hold  that  the  words  were  used  in 
their  proper  technical  meaning  until  the  contrary  clearly  appears. 

The  counsel  for  the  heirs  at  law  contend  that  Daniel  could  not  have 
taken  a  vested  remainder  under  the  second  clause,  because  the  clause 
was  not  intended  to  take  effect  until  after  his  death,  being  then  in- 
tended to  take  effect  in  favor  of  the  persons  then  answering  to  the 
description  of  the  testator's  right  heirs;  or,  in  other  words,  that  the 
remainder  was  contingent  until  then,  the  persons  entitled  being  pre- 
viously undetermined.  In  support  of  this  contention  he  directs  atten- 
tion particularly  to  the  language  of  the  second  clause,  which  gives, 
after  the  clause  of  Daniel,  not  "the  remainder  of  the  estate,"  but  "all 
the  property  affected  by  the  above  trust  which  shall  then  remain." 
The  view  is  not  without  force,  but  the  precedents  are  against  it.  The 
estate  given  by  the  second  clause  does  not  vest  in  possession  until 
after  Daniel's  death;  but  the  question  is,  when  did  it  vest  in  title  or 
ownership?  This  question  is  to  be  decided  in  the  light  of  the  rule 
that  the  law  favors  vesting  very  strongly,  and  will  not  regard  a  re- 
mainder as  contingent,  in  the  absence  of  very  decisive  terms  of  con- 
BuBD.CAS.REAr,  Prop. — 21 


322  ESTATES    IN    EXPECTANCY 

tingeiicy,  unless  the  provisions  or  implications  of  the  will  clearly  re- 
quire it,  and  that  words  expressive  of  future  time  are  to  be  referred 
to  the  vesting  in  possession,  if  they  reasonably  can  be,  rather  than 
to  the  vesting  in  right.  2  Jarm.  Wills,  (5th  Amer.  Ed.)  421,  note; 
Cusack  V.  Rood,  24  Wkly. 'Rep.  391;  Bullock  v.  Downes,  9  H.  L. 
Cas.  1. 

The  words  "I  give  and  bequeath,"  in  a  testamentary  paper,  says 
Chief  Justice  Shaw,  in  Eldridge  v.  Eldridge,  9  Cush.  (Mass.)  516,  519, 
"import  a  benefit  in  point  of  right,  to  take  effect  upon  the  decease  of 
the  testator  and  the  proof  of  the  will,  unless  it  is  made  in  terms  to 
depend  on  some  contingency  or  condition  precedent."  This  remark 
applies  pointedly  to  said  second  clause,  as  will  clearly  appear  if  we 
slightly  alter  the  form,  without  altering  the  sense,  so  that  the  clause 
shall  read  thus :  "I  give  and  bequeath  all  the  property  affected  by  the 
above  trust,  which  shall  remain  after  the  decease  of  said  Daniel  C. 
Kenyon,  to  my  own  right  heirs."  The  gift  so  expressed  is  clearly  im- 
mediate, though  how  much  will  eventually  pass  by  it  is  uncertain,  to 
be  ascertained  only  at  the  death  of  Daniel.  The  same  uncertainty 
would  exist  if  this  were  the  form  of  the  gift,  to-wit:  "1  give  to  A. 
for  life,  with  power,  in  case  the  income  is  insufficient  for  his  comforta- 
ble support,  to  sell  and  use  the  corpus  or  principal  therefor,  so  far 
as  required,  and  after  the  death  of  A.,  to  B.  and  his  heirs ;"  and  yet, 
without  doubt,  the  remainder  under  such  a  devise  would  vest  immedi- 
ately at  the  testator's  decease.  It  would  vest,  subject  to  be  divested, 
either  wholly  or  in  part,  by  the  exercise  of  the  power.  The  devise  in 
either  form  is  in  effect  the  same,  and  so  likewise  is  it,  in  our  opinion, 
in  legal  construction,  at  least  so  far  as  the  question  of  vesting  is  con- 
cerned. 

In  Surman  v.  Surman,  5  Madd.  123,  the  gift  was  of  personal  prop- 
erty in  this  wise,  to-wit:  "I  give  and  bequeath  the  same  to  my  wife 
for  life,  or  during  widowhood,  with  power  to  use  and  appropriate 
the  same  as  she  thinks  proper  for  her  own  benefit,  or  the  maintenance 
of  my  nephew  and  daughter-in-law  during  minority ;  and  on  her  de- 
cease I  give  and  bequeath  the  same,  or  so  much  of  the  same  as  shall 
then  remain,  to  said  nephew  and  daughter-in-law."  And  the  court 
held  that  upon  the  marriage  or  death  of  the  wife  the  remainder  of 
the  capital  unapplied  was  well  limited  to  the  nephew  and  daughter-in- 
law.  In  Burleigh  v.  Clough,  52  N.  H.  267,  13  Am.  Rep.  23,  the  gift 
included  real  and  personal  estate,  and  was  thus :  "I  do  give,  devise, 
and  bequeath  unto  my  wife,  *  *  *  to  her  use  and  disposal  during 
her  natural  life,  and  what  is  remaining  at  her  decease  undisposed  of 
by  her  I  give,  devise,  and  bequeath  to  D.  and  his  heirs."  Held,  that 
D.  took  a  vested  remainder  subject  to  be  divested  by  the  executor  of 
the  power.  These  cases,  in  our  opinion,  are  not  distinguishable  in 
point  of  principle  from  the  case  at  bar.  In  White  v.  Curtis,  12  Gray 
(Mass.)  54,  it  was  decided  that  a  devise  in  trust,  to  apply  the  income, 
and  if  necessary  the  principal,  to  the  support  of  the  testator's  sons  for 


FUTURE    ESTATES — AT   COMMON   LAW  323 

life,  and  after  their  death  to  divide  the  remainder  among  his  grand- 
children, gives  each  grandchild  a  vested  interest  at  the  death  of  the 
testator.     See,  also,  Ackerman  v.  Gorton,  67  N.  Y.  63. 

Our  conclusion  is  that  said  second  clause  does  not  show  clearly 
an  intent  on  the  part  of  the  testator  to  have  the  property  given  there- 
by go,  after  the  death  of  his  son,  to  the  persons  then  answering  to  the 
description  of  his  own  right  heirs. 

If  the  first  and  second  clauses,  taken  separately,  do  not  show  such 
an  intent,  do  they,  taken  together,  show  it  ?  We  think  there  can  be  no 
doubt  if,  the  will  remaining  otherwise  the  same,  the  immediate  gift 
were  to  some  person  other  than  the  son,  or  to  the  son  he  being  one 
of  several  heirs  at  law,  that  the  son  would  take  at  the  death  of  the 
testator  a  vested  remainder  under  said  second  clause,  solely  in  the  first 
case  supposed  and  together  with  his  co-heirs  in  the  second.  The  ques- 
tion, then,  is  whether  the  fact  that  he  is  the  sole  heir  at  law  is  •suffi- 
cient to  exclude  him  by  implication  from  taking  under  the  second  clause, 
and  to  carry  the  estate  given  thereby  over  until  after  his  death  to 
the  persons  then  answering  to  the  description  of  the  testator's  right 
heirs.  The  case  of  Miller  v.  Eaton,  Coop.  272,  decided  A.  D.  1815, 
by  Sir  William  Grant,  supports  the  affirmative  of  this  question.  The 
cases  of  Jones  v.  Colbeck,  8  Ves.  38,  (A.  D.  1802 ;)  Butler  v.  Bushnell, 
3  Mylne  &  K.  232,  (A.  D.  1834;)  and  Briden  v.  Hewlett,  2  Mylne  & 
K.  90,  (A,  D.  1831,) — likewise  go  some  way  in  support  of  it,  but  in 
them  there  were  other  indications  of  intent  which  influenced  the  de- 
cision. 

Mr.  Jarman  remarks  that  Miller  v.  Eaton  is  the  only  case  where 
the  fact  of  the  prior  legatee  being  the  sole  "next  of  kin"  of  the  testator 
at  his  death  has  been  held  sufficient  to  exclude  him  from  taking  in 
remainder  under  that  designation.  The  words  relied  on  as  showing 
an  intent  to  postpone  the  vesting  in  Butler  v.  Bushnell,  were  "to  such 
persons  as  should  happen  to  be  my  next  of  kin  according  to  the  statute 
of  distributions;"  and  in  Briden  v.  Hewlett  were  "to  such  persons  as 
would  be  entitled  by  the  statute  of  distributions,"— -these  words  being 
regarded  as  looking  to  the  future,  and  so  indicating  that  the  gift  over 
was  intended  to  take  effect,  in  right  as  well  as  in  possession,  at  the  ex- 
piration of  the  prior  estate.  These  cases  have  been  a  good  deal  doubt- 
ed and  criticised,  and  Mr.  Jarman  says  of  them  that  "at  the  present 
day  it  is  not  probable  such  decisions  would  be  made."  2  Jarm.  Wills,. 
(5th  Amer.  Ed.)  134.  The  case  of  Miller  v.  Eaton  is  not  now  followed 
as  authority  in  England. 

The  rule  which  is  recognized  in  the  later  English  cases  as  the  correct 
rule  is  stated  by  Sir  James  Wigram,  in  Say  v.  Creed,  5  Hare,  580. 
587,  in  the  words  following,  to-wit :  "Where  a  testator  gives  property 
to  a  tenant  for  life,  and  upon  the  death  of  the  tenant  for  life  to  his 
next  of -kin,  and  there  is  nothing  in  the  context  to  qualify,  or  in  the 
circumstances  of  the  case  to  exclude,  the  natural  meaning  of  the  tes- 
tator's word,  the  next  of  kin  of  the  testator  living  at  his  death  will 


324  ESTATES    IN    EXPECTANCY 

take ;  and  if  the  tenant  for  life  be  such  next  of  kin,  either  solely  or 
jointly  with  other  persons,  he  will  not  on  that  account  only  be  ex- 
cluded." See,  also,  to  the  same  effect,  Cusack  v.  Rood,  24  Wkly.  Rep. 
391,  per  Jessel,  M.  R.,  A.  D,  1876.  Of  course  if  the  property  be  real, 
"heirs  at  law"  takes  the  place  of  "n'ext  of  kin,"  in  any  statement  of 
the  rule. 

American  cases  that  are  directly  in  point  are  not  numerous.  The 
following  cases  are  cited  for  the  administrator:  Harris  v.  McLaran, 
30  Miss.  533 ;  Rand  v.  Butler,  48  Conn.  293 ;  Stokes  v.  Van  Wyck,  83 
Va.  724,  3  S.  E.  387.  The  first  case  is  thus  stated  in  the  marginal 
note:  "A.,  the  father,  gave  to  C,  by  deed  in  trust,  for  B.,  his  only 
child,  several  slaves  for  life,  and  after  her  death  to  her  child  or  chil- 
dren, and,  in  default  of  issue  living  at  her  death,  then  to  the  lawful 
heirs  of  A.,  the  donor.  A.  died  leaving  B.  his  only  heir  at  law,  who 
afterwards  died  without  issue.  Held,  that  an  absolute  estate  in  fee 
vested  in  B.  by  the  terms  of  the  gift ;  but  if  it  were  otherwise  the  limita- 
tion over  to  his  lawful  heirs  remained  in  A,  as  his  old  reversion,  and 
at  his  death  went  to  B.,  as  his  next  of  kin,  and  not  to  those  who  by 
the  death  of  B.  became  next  of  kin."  In  Rand  v.  Butler,  the  testator 
gave,  by  will,  real  and  personal  estate  in  trust  for  B.  for  life,  and 
directed  the  trustees,  after  B.'s  death,  to  transfer  the  same  to  the  testa- 
tor's heirs  at  law.  B.  was  an  only  child,  mentally  weak.  He  died 
without  issue.  The  question  was  whether  the  heirs  at  law  meant  by 
the  will  were  the  testator's  heirs  at  law  at  his  own  or  at  B.'s  death. 
The  court  held  that,  to  warrant  giving  the  word  "heirs"  any  other 
than  its  ordinary  meaning,  it  must  be  clear  that  the  testator  intended 
such  other  meaning ;  that  such  an  intention  could  not  be  inferred  from 
the  facts  that  B.  was  mentally  weak,  that  the  testator  put  the  property 
given  to  him  for  life  in  trust,  and  that  he  used  "heirs"  in  the  plural, 
B.  being  the  sole  heir ;  and  that  if  the  heirs  meant  were  those  at  B.'s 
death,  the  gift  over  was  void,  under  the  Connecticut  statute  against 
perpetuities,  so  that  the  result  would  be  the  same  whichever  construc- 
tion was  adopted.  The  case  is  not  a  full  precedent,  but,  so  far  as  it 
goes,  it  is  strongly  in  favor  of  the  construction  contended  for  by  the 
administrator.  In  Stokes  v.  Van  Wyck,  B.,  dying  in  1834,  devised 
real  estate  to  his  daughter,  Mrs.  W.,  for  her  life,  remainder  in  fee 
to  her  issue,  and  in  default  thereof  to  his  own  right  heirs.  Mrs.  W. 
was  at  the  testator's  death  his  only  child.  In  1857  she  sold  and  con- 
veyed the  estate.  She  died  in  1884,  without  issue.  In  ejectment  by 
the  testator's  heirs  living  at  Mrs.  W.'s  death  against  her  grantees  to 
recover  the  estate,  it  was  decided  that  the  grantees  acquired  a  perfect 
title  by  Mrs.  W.'s  conveyance.  The  case  follows  the  later  English  de- 
cisions, and  is  fully  in  point. 

The  counsel  for  the  heirs  at  law  have  cited  no  case  that  bears  speci- 
fically on  this  point.  They  contend  generally  that  the  intention  of  the 
testator  must  govern,  and  that  when  that  appears  it  overrides  all  rules 
and  precedents,  making  its  own  law.     This  is  generally  so ;  but  the 


FUTURE    ESTATES — AT   COMMON   LAW  325 

intention  that  has  this  effect  is  the  intention  testamentarily  expressed, 
and  when  the  testator  uses  famihar  legal  words  he  must  be  presumed 
to  have  used  them  in  their  meaning  till  the  contrary  clearly  appears. 
Says  the  court  in  Harris  v.  McLaran,  supra:  "We  cannot  indulge 
in  any  hypothesis  as  to  the  intention  of  the  donor.  We  can  only  know 
that  intention  by  referring  to  the  language  which  he  has  employed,  and 
to  those  associated  circumstances  which  the  law  has  declared  shall 
indicate  his  wishes.  The  terms  'lawful  heirs,'  'right  heirs,'  and  'heirs' 
are  synonymous.  Their  signification  is  fixed  by  law ;  and  when  they 
are  used  in  a  deed  or  will  without  any  superadded  words  or  phrases 
indicating  a  different  meaning,  they  are  always  understood  to  be  used 
according  to  their  legal  acceptation."  It  is  a  point  in  favor  of  the  con- 
struction for  which  the  administrator  contends  that  the  remainder  giv- 
en over  to  the  testator's  own  right  heirs  is,  strictly  speaking,  expectant 
on  the  determination,  not  of  the  son's  equitable  life-estate,  but  of  the 
trustee's  legal  estate  pur  autre  vie,  so  that  there  was  no  merger  of  the 
title,  the  life-estate  being  equitable,  and  the  remainder  legal. 

The  court  declare  it  to  be  their  opinion  that  Daniel  C.  Kenyon  took, 
under  the  will  of  his  father,  George  C.  Kenyon,  the  estate  given  and 
bequeathed  by  the  second  clause  thereof,  by  way  of  vested  remainder 
in  fee,  and  that  on  said  Daniel's  death  the  same  descended  to  his  heirs 
and  legal  representatives,  subject  to  the  payment  of  his  debts. 


2.  Contingent  Re:mainde:rs 


SULLIVAN  v.  GARESCHE. 
(Supreme  Court  of  Missouri,  Division  No.  1,  1910.    229  Mo.  496, 129  S.  W.  949.) 

Appeal  from  St.  Louis  Circuit  Court;    Moses  N.  Sale,  Judge. 

Suit  to  quiet  title  under  Rev.  St.  1899,  §  650  (Ann.  St.  1906,  p.  667), 
by  Nellie  P.  Sullivan  against  William  McRee  Garesche.  Decree  foK 
plaintiff  and  defendant  appeals.  While  the  cause  was  pending  before 
the  Supreme  Court  defendant  died  and  Mary  T.  Garesche,  his  widow, 
was  appointed  guardian  ad  litem  of  his  minor  children,  and  the  cause 
was  revived  in  their  names  as  appellants.     Affirmed. 

VallianT,  J.  Since  this  cause  has  been  pending  in  this  court  the 
appellant  has  died,  leaving  Mary  T.  Garesche,  his  widow,  and  Ferdi- 
nand T.  Garesche,  Marie  Elsie  Garesche,  and  Eugenie  Terese  Gar- 
esche, his  three  children,  who  are  minors  and  his  sole  heirs  at  law, 
and  after  due  service  of  scire  facies  on  them,  Mary  T.  Garesche  has 
been  appointed  and  qualified  as  guardian  ad  litem  of  the  minor  chil- 
dren, and  the  cause  has  revived  in  their  names  as  appellants. 

It  is  a  suit  to  quiet  title  under  section  650,  Rev.  St.  1899  (Ann.  St. 
1906,  p.  667).     The  property  in  question  is  a  lot  in  block  276  of  the 


326  ESTATES    IN    EXPECTANCY 

city  of  St.  Louis  particularly  described  in  the  petition.  Plaintiff  claims 
to  be  the  absolute  owner  in  fee  of  the  lot.  Defendant  in  his  answer 
claimed  an  undivided  vested  interest  in  the  lot  under  the  will  of  his 
grandmother,  Maria  Taylor,  or  an  undivided  vested  interest  in  rever- 
sion as  an  heir  at  law  to  his  grandmother.  The  decree  of  the  court 
was  that  plaintiff  was  the  absolute  owner  of  the  whole  lot  in  fee,  and 
that  defendant  had  no  interest  in  it;  from  that  decree  defendant  ap- 
pealed. 

The  title  to  an  undivided  one-third  of  the  lot  was  vested  absolutely 
in  Maria  Taylor  at  the  time  of  her  death.  The  other  tw^o-thirds  in- 
terests have  been  acquired  and  are  now  held  by  the  plaintiff'.  The 
plaintiff  has  also  acquired  and  now  holds  all  the  interests  of  all  the 
devisees  under  the  will  of  Maria  Taylor  and  of  her  heirs  at  law, 
except  the  interest  of  the  original  defendant  and  appellant,  Wm.  AIc- 
Ree  Garesche,  if  any  he  had.  The  decision  of  the  cause  will  depend 
on  the  construction  of  the  will  of  Maria  Taylor,  which,  or  so  much 
of  it  as  bears  on  the  matter  in  controversy,  is  as  follows : 

"1st.  I  give  and  bequeath  to  my  children.  Rose,  Anna,  Lise,  Von, 
and  Groff",  the  sum  of  one  dollar  each. 

"2nd.-  All  the  rest  and  residue  of  my  property  of  which  I  may  be 
possessed  at  the  time  of  my  death,  I  give  and  bequeath  to  my  daugh- 
ters Kate  and  Julia,  in  equal  parts  between  them.  To  have  and  to 
hold  the  same,  as  hereinafter  stated.  In  case  of  the  marriage  or  the 
death  of  either  of  my  said  daughters  Kate  and  Julia,  the  share  of 
the  one  marrying  or  dying  shall  go  to  the  other. 

'"In  the  event  of  the  marriage  of  both  of  my  said  daughters  Kate 
and  Julia,  said  property  shall  be  divided  equally  among  all  of  my  chil- 
dren. 

"In  the  event  of  the  death  of  both  of  my  said  daughters  Kate  and 
Julia  before  marriage,  said  property  shall  be  divided  equally  among 
my  surviving  children." 

All  the  children  of  testatrix  named  in  the  will,  seven  in  number, 
were  living  at  her  death,  and  all  are  now  living  except  the  daughter, 
Lise,  who  has  since  died,  leaving  her  only  heir  the  original  defendant, 
Wm.  McRee  Garesche.  Neither  of  the  daughters,  Julia  and  Kate, 
has  yet  married. 

L  Assuming  for  the  present  that  it  was  only  a  life  estate  given  to 
the  daughters,  Kate  and  Julia,  with  remainder  over,  was  it  a  vested 
or  a  contingent  remainder?  There  are  two  events  forecast  in  the 
will  according  to  which  the  estate  given  to  the  two  daughters  is  to 
cease  or  determine,  to  wit:  Marriage,  and  death  without  marriage. 
If  one  should  marry  and  the  other  not,  the  estate  of  the  married  one 
is  to  go  to  the  other;  if  both  should  marry,  the  estate  of  both  is  to 
determine,  and  the  property  is  "to  be  divided  equally  among, all  my 
children ;"  if  both  should  die  before  marriage,  the  "property  shall  be 
divided  equally  among  my  surviving  children." 


FUTURE    ESTATES — AT    COMMON    LAW  327 

There  is  not  much  difference  between  counsel  on  the  effect  of  the 
condition  that  marriage  should  cause  a  forfeiture  of  the  estate.  In 
his  answer  to  the  petition  the  defendant  said  that  he  was  advised  that 
that  feature  of  the  will  was  void,  because  it  was  in  total  restraint  of 
marriage;  but  appellants  now  take  the  position  that  that  feature  of 
the  will  is  not  entirely  in  restraint  of  marriage  but  only  partly  so 
since  by  marriage  the  daughter  does  not  lose  all  interest  in  the  prop- 
erty, but  comes  in  under  the  clause  "all  of  my  children"  among  whom 
the  property  is  to  be  equally  divided,  in  the  event  of  the  forfeiture 
of  the  particular  estate  by  the  marriage  of  both.  But  the  interest 
which  marriage  would  forfeit,  if  effect  is  given  to  that  part  of  the 
will,  is  not  compensated  by  a  share  with  the  other  children  which,  as 
compared  with  the  estate  forfeited,  is  but  a  small  part.  The  only 
intention  of  the  testatrix,  as  it  very  clearly  appears,  is  that  the  only 
preference  given  these  two  daughters,  over  all  the  other  children,  is 
to  be  forfeited  if  they  marry.  That  feature  of  the  will  is  in  restraint 
of  marriage  and  is  therefore  void. 

The  law  on  this  subject  received  the  earnest  consideration  of  this 
court  in  an  early  case,  and  the  doctrine  there  laid  down  has  been 
the  law  of  this  state  ever  since.  Williams  v.  Cowden,  13  Mo.  212,  53 
Am.  Dec.  143.  In  that  case  the  testator  had  devised  land  to  his  son 
and  daughter  with  the  provision,  "if  his  said  daughter  should  marry 
or  die,"  the  land  should  go  exclusively  to  the  son.  The  court  held  that 
that  provision  as  to  marriage  was  void.  In  commenting  on  the  sub- 
ject the  court  said:  "Upon  the  general  proposition,  the  preservation 
of  domestic  happiness,  the  security  of  private  virtue,  and  the  rearing 
of  families  in  habits  of  sound  morality  and  filial  obedience  and  rever- 
ence, are  deemed  to  be  objects  too  important  to  society  to  be  weighed 
in  the  scale  against  individual  or  personal  will."  The  only  excep- 
tion to  this  rule  found  in  our  reports  is  in  relation  to  a  will  by  a 
husband  making  provision  for  his  widow  during  her  widowhood. 
Walsh  V.  Matthews,  11  Mo.  134;  Dumey  v.  Schoeffler,  24  Mo.  170, 
69  Am.  Dec.  422.  In  the  latter  case  the  court  referred  to  Williams- 
V.  Cowden  and  showed  how  it  was  distinguished  from  that  case  and 
showed  the  reason  for  making  an  exception  in  favor  of  testamentary 
provisions  for  widows  during  widowhood. 

JWeJiold  that  so  much  of  this  will  as  attempts  to  provide  that,  on 
the  marriage  of  either  of  these  daughters,  her  estate  should  go  to 
the  other,  and,  upon  the  marriage  of  both,  the  whole  property  should 
be  divided  among  all  of  the  children  of  the  testatrix  is  void.  The  will 
is  therefore  to  be  construed  as  if  those  words  were  not  contained  in  it. 
Thajt  elimination  leaves  the  will  as  providing  only  that  in  case  of  the 
death  of  either  of  the  two  daughters  her  estate  should  go  to  the 
other,  and  in  case  of  the  death  of  both,  before  marriage,  the  prop- 
erty should  be  divided  among  "my  surviving  children."  The  other 
children  have  no  interest  in  the  event  that  would  cause  the  estate  of 


328  ESTATES    IN    EXPECTANCY 

one  of  the  two  daughters  to  go  to  the  other;  they  are  concerned 
only  in  the  event  that  would  cause  the  particular  estate  to  cease  and 
the  property  be  divided  among  all  the  surviving  children  of  the  testa- 
trix. That  event  is  the  death  of  both  the  daughters  without  either 
having  been  married.  It  is  not  in  restraint  of  marriage,  and  there- 
fore not  unlawful,  for  a  testator  to  devise  certain  property  to  one 
'of  his  children,  and  provide  that  in  case  the  child  should  die  without 
having  been  married,  the  property  should  go  to  another  or  others. 
Provisions  of  that  kind  are  not  uncommon  and  are  legitimate.  Under 
the  terms  of  this  will  the  other  children  of  the  testatrix  can  have  no 
interest  in  this  property,  until  these  two  daughters  die  without  either 
having  married.  These  two  daughters,  possibly  in  deference  to  their 
mother's  wish,  have  not  yet  married,  but  what  is  more  natural  than 
that  they  should,  or  more  probable  than  that  they  will  ?  They  would 
forfeit  no  interest  in  the  property  if  they  should  marry,  and  if  they 
or  either  of  them  should  marry  it  would  be  the  end  of  all  expectation 
of  the  other  children  to  take  under  the  will,  because  then  the  event 
on  which  the  remainder  depends,  that  is,  the  death  of  both  without 
having  been  married,  could  never  occur.  Is  the  estate  which  is  to. 
take  effect  on  the  death  of  the  two  daughters,  without  having  been 
married,  a  remainder,  and,  if  so,  is  it  a  vested  or  a  contingent  re- 
mainder? 

Fearne  divides  contingent  remainders  into  four  classes,  from  which 
we  take  two:  "1.  Where  the  remainder  depends  entirely  on  a  con- 
tingent determination  of  the  preceding  estate ;  as,  if  A.  makes  a  feoff- 
ment to  the  use  of  B.  till  C.  returns  from  Rome,  and  after  such  re- 
turn of  C,  then  to  remain  over  in  fee.  *  *  *  4,  Where  a  remain- 
der is  limited  to  a  person  not  ascertained,  or  not  in  being,  at  the  time 
when  such  limitation  is  made ;  as,  if  a  lease  be  made  to  one  for  life, 
remainder  to  the  right  heirs  of  J.  S.  who  is  living,  or  remainder  to 
the  first  son  of  B.,  who  has  no  son  then  born,  or  if  an  estate  is  lim- 
ited to  two  for  life,  remainder  to  the  survivor  of  them  in  fee."  2 
Fearne  (4th  Am.  Ed.)  §§  184-187.  That  is  to  say,  the  remainder  is 
contingent  if  the  event  on  which  it  is  to  take  effect  is  contingent, 
or  if  at  the  time  of  creating  the  estate  the  person  who  is  to  take  is, 
not  ascertained.  Both  those  contingencies  are  present  in  this  case. 
The  event  on  which  the  remainder,  if  it  be  a  remainder,  is  to  take 
effect,  that  is,  the  death  of  both,  without  having  been  married,  may 
or  may  never  occur;  death Js  certain,  but  that  they  will  not  marry  is 
not  certain ;  and  second,  which,  if  either  or  any  of  the  other  children 
of  the  testatrix  will  be  living  when  the  particular  estate  determines, 
is  also  uncertain. 

The  last  proposition  depends  on  whether  the  words  "my  surviving 
children"  mean  those  living  at  the  death  of  the  testatrix,  or  those  liv- 
ing at  the  termination  of  the  particular  estate.  The  use  of  that  term, 
"surviving  children,"  is  very  common  in  wills,  and  the  question  whether 


FUTURE    ESTATES — AT  COMMON   LAW  329 

it  means  children  surviving  at  the  death  of  the  testator,  or  at  some 
other  period,  has  been  much  discussed  and  variously  decided,  but  in 
every  case  the  decision  is  aimed  to  meet  the  intention  of  the  testator 
in  the  particular  v^ill,  as  such  intention  is  gathered  from  the  whole 
will  and  the  circumstances  to  which  it  applies.  No  unvarying  rule 
can  be  laid  down  for  the  interpretation  of  those  words  or  words  of 
similar  meaning,  but,  subject  to  exception,  when  the  facts  of  the  par- 
ticular case  require  it,  the  general  rule  is  that  if  an  estate  is  given  by 
will  to  the  survivors  of  a  class  to  take  effect  on  the  death  of  the  tes- 
tator, the  word  "survivors"  means  those  living  at  the  death  of  the  tes- 
tator; but  if  a  particular  estate  is  given  and  the  remainder  is  given 
to  the  survivors  of  a  class,  the  word  "survivors"  means  those  surviving 
at  the  termination  of  the  particular  estate. 

There  is  a  learned  discussion  of  this  subject  in  each  of  the  briefs 
with  which  we  are  favored,  and  authorities  are  there  collected  and 
cases  discussed.  But  we  do  not  think  it  would  profit  to  attempt  to 
review  the  authorities  referred  to,  since  this  court  has  in  at  least  two 
cases  gone  over  the  whole  field  and  laid  down  the  rule  as  we  have 
above  stated  it.  De  Lassus  v.  Gatewood,  71  Mo.  371,  and  Dickersort 
V.  Dickerson,  211  Mo.  483,  110  S.  W.  700.  We  hold  that  the  words, 
"my  surviving  children,"  in  Maria  Taylor's  will  mean  those  of  her 
children  who  might  be  living  at  the  time  when  the  estate  given  to  the- 
two  daughters  should  determine ;  that  is,  on  the  death  of  both  before 
marriage.  It  was  therefore  uncertain  at  the  death  of  the  testatrix 
which,  if  either,  of  her  children  would  be  living  at  that  time,  and  the 
remainder,  if  it  is  a  remainder,  is  therefore  contingent.  Wm.  McRee 
Garesche's  mother  having  only  a  contingent  interest  in  the  estate  thus^ 
created,  that  interest jwas  extinguished  by  her  death,  and  therefore- 
liePheir  has^o  interest  unHer  the  will  in  question."" 

2.  But  suppose  both  Kate  and  Julia  should  never  marry  and  no 
one  of  the  other  children  of  testatrix  should  survive  them,  what  then 
would  become  of  the  estate?  If  there  was  a  remainder  over  and  no 
remainderman  to  take  it,  it  would  go  back  to  the  estate  and  descend 
to  the  heirs  of  Maria  Taylor.  But  would  there,  under  the  terms  of 
this  will,  be  any  remainder  over?  A  contingent  remainder  cannot 
take  effect,  until  the  event  or  the  fact  on  which  it  depends  occurs  or 
comes  into  existence.  If  an  estate  is  devised  to  A.  for  life,  remainder 
to  B.  when  C.  returns  from  Rome,  if  C.  dies  without  having  returned 
from  Rome,  there  is  no  remainder.  If  an  estate  is  devised  to  A.  for 
life,  remainder  to  the  first  son  born  to  B.,  and  B.  should  die  having 
no  son  born  to  him,  there  is  no  remainder.  In  those  two  supposed 
cases,  on  the  falling  in  of  the  life  estate,  what  remains  would  be  a 
reversion,  going  back  to  the  grantor  or  his  heirs.  But  if  the  particular 
estate  is  not  a  mere  life  estate,  if  it  is  a  determinable  fee,  liable  to 
be  cut  down  on  the  happening  of  the  event  on  which  the  future  estate 


330  ESTATES    IN    EXPECTANCY 

depends,  and  that  event  does  not  occur,  then  the  fee  Is  not  cut  down 
and  there  is  no  reversion. 

The  will  of  Maria  Taylor  does  not  in  terms  give  to  the  two  daugh- 
ters named  a  life  estate ;  it  gives  them  the  property  in  fee,  subject 
to  being  cut  down  to  a  life  estate  in  the  event  of  their  death,  without 
ever  having  married.  The  language  of  the  will  is :  "All  the  rest  and 
residue  of  my  property  of  which  I  may  be  possessed  at  the  time  of 
my  death,  I  give  and  bequeath  to  my  daughters  Kate  and  Julia,  in  equal 
parts  between  them.  To  have  and  to  hold  the  same,  as  hereinafter 
stated."  That  is  to  say,  it  is  an  absolute  estate,  except  as  it  might 
be  cut  down  as  thereinafter  specified.  Under  the  express  terms..of_ 
our  statute,  section  4646,  Rev.  St.  1899  (Ann.  St.  1906,  p.  2517),  words 
of  inheritance  are  not  necessary  in  a  will  to  create  an  estate  in  fee. 
When  an  estate  is  granted  it  is  limited  or  qualified  only  by  words  ijn] 


the  will  limiting  or  qualifying  it.  The  only  words  in  this  will  lim- 
iting or  qualifying  the  estate  granted  are :  "In  -the  event  of  the  death 
of  both  of  my  said  daughters  Kate  and  Julia  before  marriage,  the 
said  property  shall  be  divided  equally  among  my  surviving  children." 
Therefore  if  they  or  either  of  them  should  marry,  the  event  on  whicli-, 
their  estate  might  be  cut  down  can  never  occur,  and  their  estate  will 
remain  absolute.  "~ 

If  the  language  of  this  will  had  been:  All  the  rest  and  residue  of 
my  property  I  will  and  bequeath  to  my  daughters,  Kate  and  Julia, 
and  to  their  heirs  and  assigns  forever  in  fee  simple,  with  this  con- 
ditional limitation,  however,  that  is  to  say,  if  neither  of  them  should 
ever  marry,  the  fee  is  to  determine  on  the  death  of  the  survivor  of 
them  and  the  property  is  to  be  divided  equally  among  my  surviving 
children,  its  legal  effect  would  not  have  been  at  all  different  from 
what  it  is  in  the  language  used. 

The  will  shows  the  intention  of  the  testatrix  to  dispose  of  her 
whole  estate.  On  the  death  of  the  testatrix  that  fee  vested  in  these 
two  daughters,  subject  to  be  determined  at  their  death,  if  they  should 
.not  have  married;  but  if  that  event  should  occur  the  will  did  not 
leave  the  fee  to  revert  to  the  heirs  of  tlie  testatrix,  but  provided  how 
it  should  go,  that  is,  to  "my  surviving  children,"  who,  in  that  event, 
would  take  as  purchasers,  not  as  heirs.  But  the  will  does  not  expressly 
provide  for  one  possible  event,  that  is,  the  death  of  all  her  other 
children  before  that  of  the  two  daughters  named,  and  afterwards,  their 
death  without  having  been  married.  But  there  was  no  necessity  for 
providing  for  that  event,  because  then  one  of  the  contingencies  on 
which  the  fee  was  to  determine  would  not  have  occurred ;  that  is,  there 
would  be  no  one  to  whom  the  executory  devise  could  apply  to  take 
the  fee. 

A  remainder  cannot  be  limited  on  a  fee,  even  though  it  be  a  deter;- 
minable  fee ;  therefore  the  devise  to  take  eft'ect  on  the  determina- 
tion of  the  fee  in  this  case  would  not  be  a  remainder,  but  an  execu-. 


FUTURE    ESTATES — AT   COMMON   LAW  331 

tory  devise.  2  Washburn,  Real  Property  (3d  Ed.),  §  1744;  Tiedemaiif 
Real  Property  (6th  Ed.),  §  392.  But  an  executory  devise  may  be 
contingent  not  only  on  the  event  that  is  to  determine  the  fee,  but  also 
on  the  being  of  the  person  to  take  when  the  event  occurs.  "Where 
the  estate  is  to  vest  upon  an  uncertain  event  or  in  a  person  not  defi- 
nitely ascertained,  the  executory  devise  is  contingent,  and  partakes 
of  the  nature  of  a  contingent  remainder."  Tiedeman,  Real  Prop- 
erty, §  386.  QnejD.f.the  distinctions. between  a  rem^^ainder  and  an  execu-. 
tory  devise  is  that  a  remainder  follows  a  particular  estate,  while  an 
"executory  devise  follows  a  fee.  2  Washburn,  Real  Property,  §  IToTT 
After  a  particular  estate  something  remains,  after  a  fee  nothing. 
If  there  be  no  remainder  to  go  into  effect  on  the  determination  of  the 
particular  estate,  or  no  one  to  take  the  remainder,  the  fee  reverts  to 
the  grantor  or  his  heirs.  If  there  be  no  executory  devise  to  take  effect 
on  the  happening  of  the  condition  on  which  the  fee  was  to  determine, 
or  no  one  to  take  it,  the  fee  is  not  cut  down,  but  remains,  unless  there 
is  something  else  in  the  will  to  show  that  the  intention  of  the  testator 
was  that  the  fee  should  determine  absolutely  on  the  happening  of  the 
condition,  without  reference  to  the  devise  over. 

The  intent  of  the  testatrix  shown  in  this  will  was  to  dispose  of  her 
whole  estate,  leaving  none  of  it  to  be  disposed  of  by  the  statute  of 
descents,  giving  it  all  to  her  children.  Her  two  daughters  named 
were  her  first  care,  but  in  a  certain  event  the  estate  given  to  them 
was  to  be  cut  down  in  favor  of  her  other  children  surviving"  them. 
The  testatrix  did  not  intend  to  cut  down  the  fee  on  the  death  of  the 
two  daughters,  independent  of  the  provision  to  follow  thereupon  for 
her  other  children.  The  devise  over  to  the  surviving  children  was 
the  only  purpose  of  the  cutting  down  of  the  fee,  and  if  that  purpose 
could  not  be  accomplished  the  fee  would  not  be  cut  down,  but  would 
remain  as  first  given,  and  there  would  be  no  reversion ;  therefore, 
if  there  were  no  children  surviving  to  take  the  estate,  the  fee  remained 
in  the  two  daughters.  The  words  "surviving  children"  as  used  in  this 
will  have  the  same  meaning  when  the  estate  over  is  considered  to  be 
an  executory  devise  as  they  would  have  if  it  were  a  remainder;  that 
is,  those  children  of  the  testatrix  surviving  the  two  daughters  to  whom 
the  estate  is  first  given.  The  mother  of  the  original  defendant  herein 
having  died,  her  contingent  interest  in  the  devise  over,  whether  it  be 
called  a  remainder  or  an  executory  devise,  terminated  with  her  death, 
and  therefore  did  not  descend  to  her  son. 

The  trial  court  had  the  correct  view  of  the  law  of  this  case.  The 
judgment  is  affirmed.    All  concur. 


332  ESTATES   IN   EXPECTANCY 


3.  Rule  in  Shelley's  Case  " 


■  BAILS  V.  DAVIS. 

(Supreme  Court  of  Illinois,   1909.     241  111.  536,  89  N.   E.   706,  29   L.  R.  A. 

[N.  S.]  706.) 

Appeal  from  Circuit  Court,  Macon  County ;  W.  C.  Johns,  Judge. 

Bill  by  Jewell  H.  Bails  and  others  against  Henry  Davis  and  others. 
Decree  of  dismissal,  and  complainants  appeal.  Reversed  and  remand- 
ed, with  directions. 

Dunn,  J.  A  demurrer  was  sustained  to  a  bill  for  partition  filed 
in  the  circuit  court  of  Macon  county,  the  bill  was  dismissed  for  want  of 
equity,  and  the  complainants  have  appealed. 

The  complainants  deraign  title  from  Jonas  Nye.  He  conveyed  the 
premises  by  a  statutory  quitclaim  deed  "to  Joseph  Kretzer  and  Mora 
Kretzer,  his  wife,  during  their  natural  lives  and  after  their  death  to  the 
heirs  of  said  Joseph  Kretzer."  The  Kretzers  were  afterward  divorced, 
and  Mora  Kretzer  conveyed  all  interest  in  the  premises  to  Joseph  Kret- 
zer, whose  title  by  subsequent  conveyances  has  become  vested  in  the 
complainants.  Joseph  Kretzer  has  two  sons,  one  of  whom  conveyed  his 
interest  in  the  premises  to  the  other,  who  was  made  a  party  to  the  bill 
and  filed  the  demurrer. 

Appellants  claim  to  be  seised  of  the  premises  in  fee  simple.  Wheth- 
er they  are  so  seised  depends  upon  the  question  whether  the  title  con- 
veyed by  Jonas  Nye  to  Joseph  Kretzer  was  a  fee  or  only  a  life  estate. 
The  language  of  the  deed  purports  to  convey  the  premises  to  the  gran- 
tees during  their  joint  lives,  and,  after  their  death,  to  the  heirs  of  Jo- 
seph Kretzer.  Appellants  claim  that  this  deed  is  within  the  rule  in  Shel- 
ley's Case,  and  conveyed  a  fee  to  Joseph  Kretzer,  subject  only  to  the 
life  estate  of  Mora  Kretzer  as  a  tenant  in  common  of  the  premises,  and 
that,  by  the  conveyance  of  her  interest,  the  whole  estate  vested  in  Jo- 
seph Kretzer.    No  brief  has  been  filed  on  behalf  of  the  appellees. 

Under  the  rule  in  Shelley's  Case,  which  is  in  force  in  this  state,  if  an 
estate  for  life  is  granted  by  any  instrument  and  the  remainder  is  limited 
by  the  same  instrument,  either  mediately  or  immediately,  to  the  heirs  of 
the  life  tenant,  the  life  tenant  takes  the  remainder  as  wejl  a_s  the  life 
estate.  The  rule  is  one  of  the  most  firmly  established  rules  of  property 
and  is  unshaken  in  this  state.  In  determining  whether  it  is  applicable 
in  a  given  casejLJie  question^  does  not  turn  upon  the  quaniity-of  estate 
mtendecl""foT)e  given  to  the  first^  taker,  whctlier  a  life  estate  or  more, 
■^vt  upon  the  nature  of  the  estate  inteifded  to  be  given  to  the  heirs, 
whetlicr  1)y  inheritance  or-otjierwige.  Vangieson  v.  Henderson,  150 
"TirilP,  36  N.  E.  974;   Ward  v.  Butler,  239  111.  462,  88  N.  E.  189,  29 

6  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  149. 


'H 


FUTURE    ESTATES — AT   COMMON   LAW  333 

L.  R.  A.  (N.  S.)  942.  When  the  heir  takes  in  the  character  of  heir,  he 
must  take  in  the  quality  of  heir,  and  all  heirs  taking  as  heirs  must  take 
by  descent.  Baker  v.  Scott,  62  111.  86.  The  limitation  to  heirs  by  that 
name  as  a  class,  to  take  in  succession  from  generation  to  generation,  re- 
quires the  estate  of  inheritance  imported  by  that  limitation  to  vest  in 
the  firsttaker.  The  language  of  the  deed  clearly  indicates  the  nature 
of  the  estate  intended  to  be  given  to  the  heirs  of  Joseph  Kretzer.  He 
is  given  an  estate  for  life  with  remainder  in  fee  to  his  heirs  as  a  class, 
without  reference  to  individuals  or  any  other  condition.  The  estate 
thus  given  to  the  heirs  by  the  operation  of  the  rule  vests  in  the  life  ten- 
ant. 

The  requisites  of  the  rule  are  stated  to  be,  first,  a  freehold  estate ; 
second,  ajiniitation  of  the  remainder  to  the  heir  or  heirs  of  the  body  of 
the  person  taking  the  freehold  estate  by  the  name  of  heirs  as  a  class 
and  without  explanation,  as  meaning  sons,  children,  etc. ;  third,  the 
estates  of  freehold  and  in  remainder  must  be  created  by  the  same  in-  .^ 
strument ;  fourth,  the  estates  must  be  of  the  same  quality — that  is,  both  '\/[ 
legal  ^rboth  equitable.  Baker  v.  Scott,  supra;  Ward  v.  Butler,  supra. 
AH  these  requisites  are 'present  here,  viz.,  a  life  estate  to  Joseph  Kret- 
zer and  a  remainder  in  fee  simple  to  his  heirs — both  legal  estates  cre- 
ated by  one  deed.  Two  reasons  suggest  themselves  which  might  be  urg- 
ed against  the  application  of  the  rule:  (1)  The  life  estate  is  in  one-half 
the  property  only,  while  the  remainder  is  in  the  whole ;  (2)  the  life  es- 
tate might  be  determined  by  the  death  of  Mora  Kretzer  in  the  lifetime 
of  Joseph,  thus  destroying  the  remainder  by  determining  the  particular 
estate  before  the  happening  of  the  contingency  which  would  determine 
the  persons  who  would  succeed  to  the  remainder.  Neither  of  these  rea- 
sons, however,  is  a  valid  objection  to  the  application  of  the  rule.  It  is 
not  a  requisite  that  the  estate  given  to  the  ancestor,  and  that  to  the  heirs 
shall  be  of  the  same  quantity.  Ward  v.  Butler,  supra.  The  rule  has  no 
effect  upon  the  estate  given  to  the  ancestor.  It  affects  only  the  remain- 
der given  to  the  heirs,  and  causes  such  remainder  to  vest  in  the  ances- 
tor, and  not  in  the  heirs.  If  there  is  a  merger  in  the  ancestor,  it  fol- 
lows, not  as  a  necessary  result  of  the  operation  of  the  rule,  but  from 
the  operation  of  another  independent  rule  of  law  in  regard  to  separate 
estates  which  in  any  manner  become  vested  in  one  person. 

In  regard  to  the  destruction  of  the  supposed  contingent  remainder 
to  the  heirs  of  Joseph  Kretzer  who  cannot  be  known  in  his  lifetime,  by 
the  termination  of  the  particular  estate  before  his  death,  the  rule  that 
contingent  remainders  are  destroyed  which  do  not  vest  at  or  before  the 
termination  of  the  particular  estate  has  no  application.  There  is  no 
contingency,  because  the  remainder  which  is  expressed  to  be  to  the 
heirs  of  Joseph  Kretzer  the  law  declares  to  be  a  remainder  to  Joseph 
Kretzer,  the  same  as  if  it  had  been  made  expressly  to  him  and  his 
heirs.  Where  there  is  a  limitation  to  several  for  their  lives  with  a  re- 
mainder in  fee  tb  tlTe^Tieirs^^Fone  of  them,  the  estate  in  remainder 
vests  at  once  in  the  ancestor  to  whose  heirs  it  purports  to  be  given. 


334:  ESTATES    IX    EXPECTANCY 

Fuller  V.  Chamier,  L.  R.  2  Eq.  682 ;  Bullard  v.  Goffe,  20  Pick.  (Mass.) 
252.  The  limitation  to  the  heirs  must  be  to  the  heirs  of  a  person 
taking  a  particular  estate  of  freehold,  but  if  it  is  confined  to  such 
heirs  then  it  is  immaterial  whether  there  be  several  ancestors  tak- 
ing the  particular  estate  or  only  one;  nor  whether  their  estates  be 
several,  provided  they  all  take,  or  joint;  nor  whether  the  remain- 
der be  to  the  heirs  of  all  or  only  of  some  or  one  of  such  ancestors ; 
nor  whether  the  estate  to  the  ancestor  be  such  as  may  possibly  deter- 
mine in  the  lifetime  of  such  ancestor  or  not.  Watkins  on  Descent. 
162-164 ;  Fearne  on  Contingent  Remainders  (4th  Ed.)  23-30 ;  1  Pres- 
ton on  Estates,  313-320;  Rogers  v.  Down,  9  Mod.  292;  Merrill  v. 
Rumsey,   1  Keb.  688.     Fearne  states  the  rule  as  follows  (page  25) : 

\  /'Whensoever  the  ancestor  takes  any  estate  of  freehold,  whether  for  his 
own  life  or  the  life  of  another,  or  whether  it  be  of  such  a  nature  that 
it  may  determine  in  his  lifetime  or  not,  and  there  is  afterwards,  in  the 

'  same  conveyance,  a  limitation  to  his  right  heirs  or  heirs  in  tail  (either 
immediately,  without  the  intervention  of  any  mean  estate  of  freehold 
between  his  freehold  and  the  subsequent  limitation  to  his  heirs,  or 
mediately,  that  is,  with  the  interposition  of  some  such  mean  estate), 
there  such  subsequent  limitation  to  the  heirs  or  heirs  in  tail  vests  im- 
mediately in  the  ancestor  and  does  not  remain  in  contingency  or  abey- 
ance, with  this  distinction:  That,  where  such  subsequent  limitation  is 
immediate,  it  then  executes  in  the  ancestor  and  becomes  united  to  his 
particular  freehold,  forming  therewith  one  estate  of  inheritance  in  pos- 
session ;  but,  where  such  limitation  is  mediate,  it  is  then  a  remainder 
vested  in  the  ancestor  who  takes  the  freehold,  not  to  be  executed  in  pos- 
session till  the  determination  of  the  preceding  mean  estates." 

The  deed  of  Jonas  Nye  conveyed  to  Joseph  Kretzer  and  Mora  Kret- 
zer  an  estate,  as  tenants  in  common,  during  their  joint  lives  with  a  re- 
mainder in  fee  to  Joseph  Kretzer.  The  conveyance  of  Mora  Kretzer  to 
Joseph  Kretzer  vested  the  latter  with  the  whole  title. 

The  court  erred  in  sustaining  the  demurrer  to  the  bill,  and  the  decree 
will  be  reversed  and  the  cause  remanded  to  the  circuit  court,  with  di- 
rections to  overrule  the  demurrer.  Reversed  and  remanded,  with  direc- 
tions.* 

6  The  rule  in  Shelley's  Case  is  also  in  force  in  Delaware  (Jones  v.  Rees.  G 
Penuewill,  504,  69  Atl.  785,  16  L.  R.  A.  [N.  S.]  734  [190S]),  District  of  Columbia 
(Vogt  V.  Vogt,  26  App.  D.  C.  46  [1905]),  Florida  (Russ  v.  Russ,  9  Fla.  105  [ISGOJ). 
Indiana  (Perkins  v.  McConnell.  136  Ind.  384,  36  N.  E.  121  [1S94]).  Maryland 
(Cook  V.  Councilman,  109  Md.  622,  72  Atl.  404  [1909]),  North  Carolina  (Tyson 
V.  Sinclair,  138  N.  C.  23,  50  S.  E.  450,  3  Ann.  Cas.  397  [1905]),  Pennsylvania 
(Simpson  v.  Reed,  205  Pa.  53,  54  Atl.  499  [1903]),  South  Carolina  (Carrigan  v. 
Drake,  36  S.  C.  354,  15  S.  E.  339  [1892]),  and  Texas  (Seay  v.  Cockrell,  102 
Tex.  280,  115  S.  W.  1160  [1909]).  It  exists  in  a  modified  form  perhaps,  in 
Nebraska.  See  Albin  v.  Parmele,  70  Nob.  740,  98  N.  W.  29  (1904);  Id.,  70  Neb. 
746,  99  N.  W.  646  (lOOlj. 


FUTURE    ESTATES — AT    COMMON   LAW  335 

HARDAGE  v.  STROOPE. 
(Supreme  Court  of  Arkansas,  1S93.    58  Ark.  303,  24  S.  W.  490.) 

Appeal  from  Circuit  Court,  Clark  county;  John  E.  Bradley,  Special 
Judge. 

Suit  by  W.  S.  Stroope  against  Joseph  A.  Hardage  and  others.  From 
a  decree  for  plaintiff,  defendants  appeal.    Reversed. 

Battle,  J.  J.  L.  Stroope  and  wife  conveyed  the  land  in  contro- 
versy to  Tennessee  M.  Carroll,  "to  have  and  to  hold  the  said  land 
unto  the  said  Tennessee  M.  Carroll  for  and  during  her  natural  life, 
and  then  to  the  heirs  of  her  body,  in  fee  simple ;  and  if,  at  her  death, 
there  are  no  heirs  of  her  body  to  take  the  said  land,  then  in  that  case 
to  be  divided  and  distributed  according  to  the  laws  for  descent  and 
distribution  in  this  state."  After  this,  Mrs.  Carroll  conveyed  it  in 
trust  to  James  M.  Hardage  to  secure  the  payment  of  a  debt.  She  had 
two  children  born  to  her  after  the  conveyance  by  J.  L.  Stroope  and 
wife,  but  they  died  in  her  lifetime.  She  died  leaving  no  heirs  of  her 
body,  but  left  her  father,  W.  S.  Stroope,  surviving.  After  her  death 
the  land  was  sold  under  the  deed  of  trust,  and  was  purchased  by  Jo- 
seph A.  Hardage.  W.  S.  Stroope,  the  appellee,  now  claims  it  as  the 
heir  of  Mrs.  Carroll,  and  Joseph  A.  Hardage,  the  appellant,  claims 
it  under  his  purchase. 

The  rights  of  the  parties  depend  on  the  legal  effect  of  the  follow- 
ing words  contained  in  the  deed  to  Mrs.  Carroll :  "To  have  and  to 
hold  the  said  land  unto  the  said  Tennessee  M.  Carroll  for  and  dur- 
ing her  natural  life,  and  then  to  the  heirs  of  her  body,  in  fee  simple ; 
and  if,  at  her  death,  there  are  no  heirs  of  her  body  to  take  the  said 
land,  then  in  that  case  to  be  divided  and  distributed  according  to  the 
laws  for  descent  and  distribution  in  this  state."  Appellee  contends 
that  Mrs.  Carroll  only  took  a  life  estate  in  the  land  under  this  clause, 
and  that  he  is  entitled  to  the  remainder,  she  having  left  no  descendants. 
On  the  other  hand,  the  appellant  contends  that  the  remainder  in  fee 
vested  in  the  children,  and,  when  they  died,  Mrs.  Carroll  inherited  it, 
and  the  whole  estate  in  the  land  became  vested  in  her;  and  that,  if 
this  contention  be  not  true,  the  deed  to  Mrs.  Carroll  comes  within 
the  rule  in  Shelley's  Case,  and  vested  in  her  the  estate  in  fee  simple ; 
and  that  in  either  event  he  is  entitled  to  the  land. 

It  is  obvious  that  the  deed  to  Mrs.  Carroll  created  in  her  no  estate 
in  tail.  Her  grantor  reserved  no  estate  or  interest,  nor  granted  any 
remainder,  after  a  certain  line  of  heirs  shall  become  extinct,  but  con- 
veyed the  land  to  her  to  hold  during  her  life,  and  then  to  the  heirs  of 
her  body  in  fee  simple.  No  remainder  vested  in  her  children.  It  was 
to  be  inherited  by  the  heirs  of  her  body,  and  they  were  hdr  descend- 
ants who  survived  her  and  were  capable  of  inheriting  at  the  time  of 
her  death.  They  might  have  been  grandchildren.  They  were  not  the 
children,  as  they  died  in  the  lifetime  of  their  mother. 


336  ESTATES    IN    EXPECTANCY 

The  effect  of  the  deed,  as  explained  by  the  habendum,  in  the  ab- 
sence of  the  rule  in  Shelley's  Case,  was  to  convey  the  land  to  Airs. 
Carroll  for  her  life,  and  then  to  her  lineal  heirs,  and,  in  default  there- 
of, to  her  collateral  heirs.  As  there  can  be  collateral  heirs  only  in 
the  absence  of  the  lineal,  the  deed  conveyed  the  land  to  Mrs.  Carroll, 
in  legal  phraseology,  for  her  life,  and  after  her  death  to  her  heirs. 

Two  questions  now  confront  us:  (1)  Does  the  rule  in  Shelley's 
Case  obtain  in  this  state  ?  (2)  And,  if  so,  does  the  deed  in  question  fall 
within  it? 

1.  Is  it  in  force  in  this  state? 

Section  566  of  Mansfield's  Digest  provides :  "The  common  law  of 
England,  so  far  as  the  same  is  applicable  and  of  a  general  nature 
and  all  statutes  of  the  British  parliament  in  aid  of  or  to  supply  the 
defect  of  the  common  law  made  prior  to  the  fourth  year  of  James 
the  First  that  are  applicable  to  our  own  form  of  government  of  a 
general  nature  and  not  local  to  that  kingdom,  and  not  inconsistent 
with  the  constitution  and  laws  of  the  United  States  or  the  constitution 
and  laws  of  this  state,  shall  be  the  rule  of  decision  in  this  state  un- 
less altered  or  repealed  by  the  general  assembly  of  this  state." 

The  rule  in  Shelley's  Case,  as  stated  by  Mr.  Preston,  which  Chan- 
cellor Kent  says  is  full  and  accurate,  is  as  follows :  "When  a  per- 
son takes  an  estate  of  freehold,  legally  or  equitably,  under  a  deed, 
will,  or  other  writing,  and  in  the  same  instrument  there  is  a  limita- 
tion by  way  of  remainder,  either  with  or  without  the  interposition  of 
another  estate,  of  an  interest  of  the  same  legal  or  equitable  quality, 
to  his  heirs,  or  heirs  of  his  body,  as  a  class  of  persons  to  take  in  suc- 
cession from  generation  to  generation,  the  limitation  to  the  heirs  en- 
titles the  ancestor  to  the  whole  estate."  Its  origin  is  enveloped  in  the 
mists  of  antiquity.  It  was  laid  down  in  Shelley's  Case  in  the  twent>'- 
third  year  of  the  reign  of  Queeri  Elizabeth,  upon  the  authority  of 
a  number  of-  cases  in  the  year  books.  Sir  William  Blackstone,  in  his 
opinion  in  Perrin  y.  Blake,  1  W.  Bl.  672,  cites  a  case  in  IS  Edw.  II, 
as  establishing  the  same  rule.  The  earliest  intelligible  case  on  the  sub- 
ject, however,  is  that  of  Provost  of  Beverly,  3  Y.  B.  9,  which  arose  in 
the  reign  of  Edward  III.,  and  substantially  declared  the  rule  as  laid 
down  in  Shelley's  Case. 

Various  reasons  have  been  assigned  for  the  origin  of  the  rule. 
Chancellor  Kent,  upon  this  subject,  says:  "The  judges  in  Perrin  v. 
Blake,  supra,  imputed  the  origin  of  it  to  principles  and  policy  de- 
duced from  feudal  tenure,  and  that  opinion  has  been  generally  fol- 
lowed in  all  the  succeeding  discussions.  The  feudal  policy  undoubt- 
edly favored  descents  as  much  as  possible.  There  were  feudal  bur- 
dens which  attached  to  the  heir  when  he  took  as  heir  by  descent,  from 
which  he  would  have  been  exempted  if  he  took  the  estate  in  the  char- 
acter of  a  purchaser.  An  estate  of  freehold  in  the  ancestor  attracted 
to  him  the  estate  imported  by  the  limitation  to  his  heirs ;   and  it  was 


FUTURE    ESTATES — AT   COMMON   LAW  337 

deemed  a  fraud  upon  the  feudal  fruits  and  incidents  of  wardship,  mar- 
riage, and  reHef  to  give  the  property  to  the  ancestor  for  his  Hfe  only, 
and  yet  extend  the  enjoyment  of  it  to  his  heirs,  so  as  to  enable  them 
to  take  as  purchasers,  in  the  same  manner,  and  to  the  same  ex- 
tent, precisely,  as  if  they  took  by  hereditary  succession.  The  policy 
of  the  law*  will  not  permit  this,  and  it  accordingly  gave  the  whole  es- 
tate to  the  ancestor,  so  as  to  make  it  descendible  from  him  in  the 
regular  line  of  descent.  Mr.  Justice  Blackstone,  in  his  argument  in 
the  exchequer  chamber  in  Perrin  v,  Blake,  does  not  admit  that  the 
rule  took  its  rise  merely  from  feudal  principles,  and  he  says  he  never 
met  with  a  trace  of  any  such  suggestion  in  any  feudal  writer.  He 
imputes  its  origin,  growth,  and  establishment  to  the  aversion  that  the 
common  law  had  to  the  inheritance  being  in  abeyance ;  and  it  was  al- 
ways deemed  by  the  ancient  law  to  be  in  abeyance  during  the  pendency 
of  a  contingent  remainder  in  fee  or  in  tail.  Another  foundation  of  the 
rule,  as  he  observes,  was  the  desire  to  facilitate  the  alienation  of  land, 
and  to  throw  it  into  the  track  of  commerce  one  generation  sooner, 
by  vesting  the  inheritance  in  the  ancestor,  and  thereby  giving  him  the 
power  of  disposition.  Mr.  Hargrave,  in  his  observations  concerning 
the  rule  in  Shelley's  Case,  considers  the  principle  of  it  to  rest  on  very 
enlarged  foundations ;  and,  though  one  object  of  it  might  be  to  pre- 
vent frauds  upon  the  feudal  law,  another  and  a  greater  one  was  to  pre- 
serve the  marked  distinctions  between  descent  and  purchase,  and  pre- 
vent title  by  descent  from  being  stripped  of  its  proper  incidents,  and 
disguised  with  the  qualities  and  properties  of  a  purchase.  It  would, 
by  that  invention,  become  a  compound  of  descent  and  purchase, — an 
amphibious  species  of  inheritance, — or  a  freehold  with  a  perpetual 
succession  to  heirs,  without  the  other  properties  of  inheritance.  In 
Doe  V.  Laming,  2  Burrows,  1100,  Lord  Mansfield  considered  the  max- 
im to  have  been  originally  introduced,  not  only  to  save  to  the  lord  the 
fruits  of  his  tenure,  but  likewise  for  the  sake  of  specialty  creditors. 
Had  the  limitation  been  construed  a  contingent  remainder,  the  ancestor 
might  have  destroyed  it  for  his  own  benefit;  and,  if  he  did  not,  the 
lord  would  have  lost  the  fruits  of  his  tenure,  and  the  specialty  cred- 
itors their  debts." 

But,  whatever  may  have  been  the  cause  of  its  origin,  its  effect  has 
been  "to  facilitate  the  alienation"  of  land  "by  vesting  the  inheritance 
in  the  ancestor,  instead  of  allowing  it  to  remain  in  abeyance  until  his 
decease."  Its  operation  in  this  respect  has  commended  it  to  the  fa- 
vorable consideration  of  the  most  learned  and  able  men  of  Great  Britain 
and  the  United  States,  and  doubtless  contributed  to  its  preservation 
and  continuance,  and  enabled  it  to  survive  the  innovation  of  legisla- 
tion and  the  changes  and  fluctuations  of  centuries.  Based  upon  the 
broad  principles  of  public  policy  and  commercial  convenience,  which 
abhor  the  locking  up  and  rendering  inalienable  any  class  of  property, 
Bued.Cas.Real  Prop. — 22 


338  ESTATES    IN    EXPECTANCY 

it  has  ever  been  in  harmony  with  the  genius  of  the  institutions  of  our 
country,  and  with  the  liberal  and  commercial  spirit  of  the  age.  Hence, 
it  has  been  recognized  and  enforced  as  a  part  of  the  common  law  of 
nearly  every  state  where  it  has  not  been  repealed  bv  statute.  Starnes 
V.  Hill,  112  N.  C.  1,  16  S.  E.  1011,  22  L.  R.  A.  598;  Baker  v.  Scott. 
62  111.  88;  Hageman  v.  Hageman,  129  111.  164,  21  N.  E.  814;  Doeb- 
ler's  Appeal,  64  Pa.  9 ;  Kleppner  v.  Laverty,  70  Pa.  72 ;  Polk  v.  Paris, 
9  Yerg.  (Tenn.)  209,  30  Am.  Dec.  400 ;  Crockett  v.  Robinson,  46  N. 
H.  454;  4  Kent,  Comm.  marg.  pp.  229-233;  2  Washb.  Real  Prop. 
(5th  Ed.)  pp.  655-657. 

The  rule  has  never  been  changed  in  this  state  except  in  one  re- 
spect,— estates  tail  have  been  abolished.  Section  643  of  Mansfield's 
Digest  provides  that,  whenever  any  one  would  become  seised  at  com- 
mon law  "in  fee  tail  of  any  lands  or  tenements  by  virtue  of  a  de- 
vise, gift,  grant  or  other  conveyance,  such  person,  instead  of  being 
or  becoming  seised  thereof  in  fee  tail,  shall  be  adjudged  to  be  and 
become  seised  thereof  for  his  natural  life  only  and  the  remainder 
shall  pass  in  fee  simple  absolute  to  the  person  to  whom  the  estate  tail 
would  first  pass  according  to  the  course  of  the  common  law  by  virtue 
of  such  devise,  gift,  grant  or  conveyance."  To  this  extent  it  has  been 
repealed ;  in  other  respects  it  remains  in  full  force  in  this  state ;  and 
it  was  so  held  in  Patty  v.  Goolsby,  51  Ark.  '71,  9  S.  W.  846. 

2.  Does  this  case  come  within  the  rule? 

"Whenever  there  is  a  limitation  to  a  man  which,  if  it  stood  alone, 
w^ould  convey  to  him  a  particular  estate  of  freehold,  followed  by  a 
limitation  to  his  heirs  *  *  *  (or  equivalent  expressions)  either 
immediately,  or  after  the  interposition  of  one  or  more  particular  es- 
tates, the  apparent  gift  to  the  heirs,  *  *  *  "  according  to  the  rule 
in  Shelley's  Case,  "is  to  be  construed  as  a  limitation  of  the  estate  of 
the  ancestor,  and  not  as  a  gift  to  his  heirs."  The  theory  was  that,  in 
cases  which  come  within  the  rule,  the  heirs  take  by  descent  from  the 
ancestor,  and  they  cannot  do  so  unless  "the  whole  estate  is  united, 
and  vests  as  an  executed  estate  of  inheritance  in  the  ancestor."  This 
theory  was  based  upon  the  fact  that  "the  ancestor  was  the  sole  ascer-, 
tained  and  original  attracting  object, — the  groundwork  of  the  grantor's 
or  testator's  bounty," — and  upon  the  presumption,  arising  from  the 
fact,  that  the  grantor  or  testator,  as  the  case  may  be,  "meant  the  per- 
son who  should  take  after  the  ancestor  should  be  any  person  indis- 
criminately who  should  answer  the  description  of  heirs  *  *  *  Qf 
the  ancestor,  and  be  entitled  only  in  respect  of  such  description,"  and 
that  the  estate  devised  or  conveyed  should  vest  in  them  in  that  char- 
acter only.  "In  order  to  effectuate  this  intent,  and  secure  the  suc- 
cession to  its  intended  objects,"  the  rule  rejects,  as  inconsistent  and 
incompatible  with  this  primary  or  paramount  intent,  "any  other  intent 
that  the  ancestor  should  take  an  estate  for  life  only,  and  the  heirs 
should  take  by  purchase,"  and  vests  the  estate  of  inheritance  in  the 


FUTURE    ESTATES — AT   COMMON    LAW  339 

ancestor.  This  was  considered  necessary  to  accomplish  the  primary 
object  of  the  grantor  or  ancestor.    2  Fearne,  Rem.  pp.  216-220. 

"Hargrave  has  justly  observed,"  says  Fearne  on  Remainders,  "that 
the  rule  cannot  be  treated  as  a  medium  for  discovering  the  testator's 
intention,  but  that  the  ordinary  rules  for  the  interpretation  of  deeds 
should  be  first  resorted  to ;  and  that,  v^hen  it  is  once  settled  that  the 
donor  or  testator  has  used  words  of  inheritance  according  to  their  legal 
import, — has  applied  them  intentionally  to  comprise  the  whole  line  oi 
heirs  to  the  tenant  for  life;  has  made  him  the  terminus  by  reference 
to  whom  the  succession  is  to  be  regulated, — then  the  rule  applies.  But 
the  rule  is  a  means  for  effectuating  the  testator's  primary  and  para- 
mount intention,  when  previously  discovered  by  the  ordinary  rules  of 
interpretation, — a  means  of  accomplishing  that  intention  to  comprise, 
by  the  use  of  the  word  'heirs,'  the  whole  line  of  heirs  to  the  tenant 
for  life,  and  to  make  him  the  terminus,  by  reference  to  whom  the 
succession  is  to  be  regulated ;  and  the  way  in  which  the  rule  operates, 
as  a  means  of  doing  this,  is  by  construing  the  word  'heirs'  as  a  word 
of  limitation,  or,  in  other  words,  by  construing  the  limitation  to  the 
heirs,  general  or  special,  as  if  it  were  a  limitation  to  the  ancestor  him- 
self and  his  heirs,  general  or  special."    2  Fearne,  Rem.  p.  221. 

In  Doebler's  Appeal,  64  Pa.  9,  Judge  Sharswood,  in  discussing  the 
rule  in  Shelley's  Case,  said :  "If  the  intention  is  ascertained  that  the 
heirs  are  to  take  qua  heirs,  they  must  take  by  descent,  and  the  in- 
heritance vest  in  the  ancestor.  The  rule  in  Shelley's  Case  is  never  a 
means  of  discovering  the  intention.  It  is  applicable. only  after  that 
has  been  discovered.  It  is  then  an  unbending  rule  of  law,  originally 
springing  from  the  principle  of  the  feudal  system;  and,  though  the 
original  reason  of  it — the  preservation  of  the  rights  of  the  lord  to  his 
relief,  primer  seisin,  wardship,  and  marriage — has  passed  away,  it  is 
still  maintained  as  a  part  of  the  system  of  real  property  which  is  based 
on  feudalism,  and  as  a  rule  of  policy.  It  declares  inexorably  that,, 
where  the  ancestor  takes  a  preceding  freehold  by  the  same  instru- 
ment, a  remainder  shall  not  be  limited  to  the  heirs,  qua  heirs,  as  pur- 
chasers. If  given  as  an  immediate  remainder  after  the  freehold,  it 
shall  vest  as  an  executed  estate  of  inheritance  in  the  ancestor;  if 
immediately  after  some  other  interposed  estate,  then  it  shall  vest  in 
him  as  a  remainder.  Wherever  this  is  so  it  is  not  possible  for  the 
testator  to  prevent  this  legal  consequence  by  any  declaration,  no  mat- 
ter how  plain,  of  a  contrary  intention.  This  is  a  subordinate  intent 
which  is  inconsistent  with,  and  must  therefore  be  sacrificed  to,  the 
paramount  one.  Even  if  he  expressly  provides  tliat  the  rule  shall  not 
apply  that  the  ancestor  shall  be  tenant  for  life  only,  and  impeachable 
for  waste,  if  he  interpose  an  estate  in  trustees  to  support  contingent 
remainders,  or  as  in  this  will,  declare  in  so  many  words  that  he  shall  in 
no  wise  sell  or  alienate,  as  it  is  intended  that  he  shall  have  a  life  in- 
terest' only,  it  will  be  all  ineffectual  to  prevent  the  operation  of  the 


340  ESTATES    IN    EXPECTANCY 

rule.  No  one  can  create  what  is  in  the  intendment  of  the  law  an  es- 
tate in  fee,  and  deprive  the  tenant  of  those  essential  rights  and  priv- 
ileges which  the  law  annexes  to  it.  He  cannot  make  a  new  estate  un- 
known to  the  law." 

"The  policy  of  the  rule,"  says  Chancellor  Kent,  "was  that  no  per- 
son should  be  permitted  to  raise  in  another  an  estate  which  was  es- 
sentially an  estate  of  inheritance,  and  at  the  same  time  make  the  heirs 
of  that  person  purchasers."    4  Kent,  Comm.  216. 

At  common  law  the  word  "heirs"  was  necessary  to  convey  a  fee 
simple  by  deed.  No  equivalent  words  would  answer  the  purpose.  If 
the  conveyance  was  not  made  to  a  man  and  his  heirs,  the  grantee  only 
took  a  life  estate,  notwithstanding  the  estate  was  limited  by  such 
phrases  as  "to  A.  forever,"  or  "to  A.  and  his  successors,"  and  the 
like.  An  express  direction  that  the  grantee  should  have  the  fee  sim- 
ple in  the  land  would  not  have  supplied  the  place  of  the  word  "heirs." 
But  in  this  state  the  question  as  to  what  estate  a  deed  to  land  con- 
veys is  determined  by  the  intent  of  the  parties,  as  ascertained  from 
the  contents  of  the  deed  and  the  power  of  the  grantor  to  convey. 
When  construed  in  this  manner,  it  is  obvious  that  the  intention  of 
the  deed  in  question  was  to  convey  the  land  in  controversy  to  Mrs. 
Carroll  for  life,  then  to  her  lineal  heirs,  and,  in  default  thereof,  to 
her  collateral  heirs ;  in  other  words,  to  Mrs.  Carroll  for  life,  and, 
after  her  decease,  to  her  heirs.  The  intention  that  the  heirs  were  to 
take  only  in  the  capacity  of  heirs  is  manifest.  The  deed  comes  within 
the  rule  in  Shelley's  Case.  The  estate  of  inheritance  vested  in  Mrs. 
Carroll,  and  she  became  seised  of  the  land  in  fee  simple.  2  Washb. 
Real  Prop.  (5th  Ed.)  p.  653. 

"As  a  consequence  from  the  foregoing  principles,  whoever  has  a 
freehold  which,  by  the  terms  of  the  limitation,  is  to  go  to  his  heirs, 
may  alien  the  estate,  subject  only  to  such  limitation  as  may  have  been 
created  between  his  freehold  and  the  inheritance  limited  to  his  heirs." 
2  Washb.  Real  Prop.  651. 

It  follows,  then,  that  Mrs.  Carroll  had  the  right  to  convey  the  fee 
in  the  land  in  trust  to  secure  the  payment  of  her  debts,  and  that  a  sale 
of  such  estate  under  the  deed,  and  in  conformity  with  law,  was  valid. 

The  decree  of  the  court  below  is  reversed,  and  the  cause  is  remand- 
ed for  proceedings  consistent  with  this  opinion.^ 

7  The  rule  in  Shelley's  Case  is  abolished  in  Alabama  (Code  1S96,  §  1025), 
California  (Barnett  v.  Barnett,  104  Cal.  298,  37  Pac.  1049  [1S94]),  Connecticut 
(Leake  v.  Watson,  60  Conn.  498,  21  Atl.  1075  [1S91]),  Georgia  (Smith  v.  Col- 
lins, 90  Ga.  411,  17  S.  E.  1013  [1892]),  Idaho  (Wilson  v.  Linder,  IS  Idaho,  438, 
110  Pac.  274,  138  Am.  St.  Rep.  213  [1010]),  Iowa  (Daniels  v.  Diugman,  140 
Iowa,  386,  lis  N.  W.  373  [190S]),  Kentucky  (Stephenson  v  Hagan,  15  B. 
Mon.  [Ky.]  282  [1854]),  Maine  (Plummer  v.  Hilton,  78  Me.  226,  3  Atl.  049 
[1880]),  Massachusetts  (Sands  v.  Old  Colony  Trust  Co..  195  Mass.  575,  81  N. 
E.  300,  12  Ann.  Cas.  837  [1907]),  Michigan  (Fullagar  v.  Stockdale,  138  Mich. 
363,  101  N.  W.  576  [1904]),  Minnesota  (Whiting  v.  Whiting,  42  Minn.  548,  44 
N.  W.  1030  [1890]),  Mississippi  (Anno.  Code  1892,  §  2440),  New  York  (Lyti'^ 
V.  Beveridge,  58  N.  Y.  592  [1874]),  Rhode  Island   (Nightingale  v.  Phillips,  'zy 


FUTURE    ESTATES — UNDER  THE   STATUTE   OF   WILLS  341 

IV.  Future  Estates — Under  the  Statute  of  Uses^ 
1.  Springing  Uses 


See  Proprietors  of  Church  in  Brattle  Square  v.  Grant,  ante,  p.  212. 


2.  Shifting  Uses 


See  Proprietors  of  Church  in  Brattle  Square  v.  Grant,  ante,  p.  212. 


V.  Future  Estates — Under  the   Statute  of  Wills    (Executory  De- 
vises) ^ 


See  Proprietors  of  Church  in  Brattle  Square  v.  Grant,  ante,  p.  212. 


RYAN  V.  MONAGHAN. 
(Supreme  Court  of  Tennessee,  1897.     99  Tenn.  338,  42  S.  W.  144.) 

Appeal  from  chancery  court,  Shelby  county ;    Sneed,  Chancellor. 
^  Bill  by  Catherine  Ryan  and  others  against  James  P.  Monaghan  and 
others  for  the  construction  of  a  will.     From  a  decree  dismissing  the 
bill,  complainants  appeal.     Modified. 

Beard,  J.  James  Monaghan  died,  leaving  a  will,  which  was  duly 
probated.    The  seventh  and  eighth  clauses  of  this  will  are  as  follows : 

"Art.  7.  To  my  beloved  wife,  Margaret,  I  give  during  her  natural 
life  all  other  real  and  personal  property  I  may  die  seised  and  possessed 
of,  to  be  used  by  her  for  her  own  separate  use  and  benefit,  without  be- 
ing controlled  or  interfered  with  under  any  circumstances  by  any  one, 
except  that  she  may  pay  fifty  dollars  each  month  to  my  son,  James  P., 
for  his  maintenance,  provided  it  does  not  exceed  one-third  of  the  in- 
come of  the  estate. 

R.  I.  175,  72  Atl.  220  [1908]),  Tennessee  (Teague  v.  Sowder,  121  Tenn.  132, 
114  S.  W.  484  [1908]),  Virginia  (Wallver  v.  Lewis,  90  Va.  578,  19  S.  E.  258 
[1894]),  West  Virginia  (Irvin  v.  Stover,  67  W.  Va.  358,  67  S.  E.  1119  [1910]), 
and  Wisconsin  (Jones  v.  Jones,  66  Wis.  310,  28  N.  W.  177,  57  Am.  Rep.  266 
[1886]).  It  is  abolished  as  to  wills  in  Kansas  (Gen.  St.  1909,  §  9829),  New 
Hampshire  (Sanborn  v.  Sanborn,  62  N.  H.  631  [1882]),  New  Jersey  (Quick  v. 
Quick,  21  N.  J.  Eq.  13  [1870]),  and  Ohio  (McDaniel  v.  Hays,  74  Ohio  St.  515, 
78  N.  E.  1131  [1906]).  And  see  Godman  v.  Simmons,  reported  post,  p.  351,  in 
this  book. 

s  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  150-153. 

»  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  154. 


342  ESTATES    IN    EXPECTAXCY 

"Art.  8._At  the  death  of  my  wife,  I  direct,  will,  and  bequeath  to  the 
heirs  of  my  son,  James  P.  Monaghan,  all  of  the  real  estate  which  I  died 
seised  and  possessed  of,  to  be  for  their  use  and  benefit,  under  the  direc- 
tion of  the  probate  court  of  Shelby  county,  Tennessee,  provided,  how- 
ever, in  the  event  my  son,  James  P.  Monaghan,  shall  die  without  issue, 
and  unmarried,  then,  and  in  that  event,  all  of  said  real  estate  I  died 
possessed  of,  except  the  property  described,  No.  23  Alabama  street, 
shall  be  owned,  and  is  hereby  given  to,  my  three  brothers  and  one  sister, 
share  and  share  alike,  divided  equally  among  them  or  their  heirs.  The 
realty  I  now  possess  consists  of  three  hundred  and  fifteen  feet  on  the 
west  side  of  Alabama  street,  extending  back  to  the  bayou  ;  a  house  and 
lot  on  the  south  side  of  Robeson  street ;  three  acres  on  Breedlove  ave- 
nue, outside  of  the  city  of  Memphis ;  and  an  irregular  piece  of  land  on 
Winchester  street  in  Memphis." 

The  testator  left  surviving  him  his  wife,  Margaret,  and  James  P. 
Monaghan,  his  only  child  and  heir  at  law,  who  was  at  the  death  of  tes- 
tator, and  continues  to  be,  an  unmarried  man.  The  life  tenant  having 
subsequently  died,  this  bill  was  filed  by  the  brothers  and  the  sister  of 
the  testator,  asking  primarily  for  a  construction  of  the  eighth  clause  of 
the  will,  and  alleging  that  upon  a  proper  interpretation  of  it  James  P. 
Monaghan,  the  son,  is  without  interest  in  the  property  covered  by  this 
clause ;  and  that,  as  the  life  estate  has  fallen  in,  they  are  entitled  to  be 
let  into  its  possession  and  enjoyment  as  owners  in  fee. 

There  is  no  doubt  of  the  intention  of  the  testator  as  it  is  expressed 
in  clause  or  article  7  of  the  will.  He  intended  that  his  wife,  Alargaret, 
should  take  a  life  estate  in  all  his  real  and  personal  property,  save  the 
lot  named  in  his  eighth  clause  as  No.  23  Alabama  street,  which  he  had 
disposed  of  in  an  earlier  article  of  his  will.  For.some  reason,  undisclosed 
in  the  record,  the  father  made  no  provision  for  his  son  taking  an  inter- 
est in  his  realty.  He  did  not  disinherit  him,  but  he  simply  failed  to  pro- 
vide for  him,  so  far  as  his  real  estate  was  concerned.  While  omitting 
to  make  provision  for  him  in  this  respect,  he  did  not  disregard  his  heirs, 
but  devised  to  them,  on  the  falling  in  of  the  Hfe  estate,  all  of  the  realty 
which,  by  the  preceding  article,  had  been  given  to  the  wife  for  the  term 
of  her  natural  life.  This  estate  thus  devised  to  the  "heirs  of"  the  son 
was  a  contingent  remainder;  and  as  this  son  was  then  alive,  and  as 
nemo  est  haeres  viventis,  this  remainder  estate,  not  being  able  to  take 
effect  on  the  termination  of  the  particular  or  supporting  estate,  fell  to 
the  ground.  In  the  meantime,  where  rests  the  inheritance  of  this  projD- 
erty?  In  whom  is  it  lodged?  It  is  evident  that  it  is  not  in  these  com- 
plainants, for  their  interest,  if  any  they  have,  rests  on  the  contingency 
of  James  P.  Monaghan  dying  "without  issue  and  unmarried."  This 
contingency  may  never  happen.  He  may  marry,  and  then  die  leaving 
issue.  If  so,  these  complainants  will  be  disappointed  of  all  interest  un- 
der this  clause.  By  accident  or  design  the  testator  failed  to  dispose  of 
the  inheritance,  and  by  operation  of  law  it  passed  to  his  son  and  only 


FUTURE    ESTATES — UNDER   THE    STATUTE    OF   WILLS  343 

heir,  James  P.  Monaghan.    Clopton  v.  Clopton,  2  Heisk.  31;   Bigley  v. 
Watson,  98  Tenn.  353,  39  S.  W.  525,  38  L.  R.  A.  679. 

The  next  question  is,  does  this  inheritance  exist  in  the  son  absolutely, 
or  is  it  in  the  nature  of  a  fee  determinable  on  his  dying  "without  issue, 
and  unmarried"?  This  depends  upon  whether,  under  the  clause  in 
question,  the  complainants  are  contingent  remainder-men  or  executory 
devisees.  If  the  former,  then,  as  there  is  no  particular  estate  to  sup- 
port their  remainder  estate,  it  must  fail.  If,  however,  the  interest  is 
that  of  executory  devisees,  then,  as  such,  an  interest  may  be  created  to 
come  into  existence  in  futuro,  and  does  not  need  the  aid  of  a  support- 
ing estate;  then  it  can  be  saved  to  them.  We  think  it  clearly  is  the 
latter. 

"An  executory  devise,"  says  Mr.  Jarman,  "is  a  limitation  by  will  of 
a  future  estate  or  interest  in  land  which  cannot,  consistently  with  the 
rules  of  law,  take  effect  as  a  remainder  for  it  is  well  settled  (and,  in- 
deed, has  been  remarked  as  a  rule  without  an  exception)  that,  where  a 
devise  is  capable,  according  to  the  state  of  the  objects  at  the  death  of 
the  testator,  of  taking  effect  as  a  remainder,  it  shall  not  be  construed  to 
be  an  executory  devise.  *  *  *  a  rem.ainder  may  be  described  to  be 
an  estate  which  is  so  limited  as  to  be  immediately  expectant  on  the  nat- 
ural determination  of  a  particular  estate  of  freehold  limited  by  the 
same  instrument.  It  follows  that  every  devise  of  a  future  interest 
which  is  not  preceded  by  an  estate  of  freehold  created  by  the  same  will, 
*  *  *  or  which,  being  so  preceded,  is  limited  to  take  effect  before 
or  after,  and  not  at  the  expiration  of,  such  prior  estate  of  freehold,  is 
an  executory  devise."    2  Jarm.  Wills,  483. 

The  complainants,  and  those  of  the  defendants  who  are  the  children 
and  heirs  of  a  dead  brother  of  the  testator,  have  an  interest  falling 
within  the  definition  of  an  executory  devise  as  given  by  Mr.  Jarman. 
To  this  extent,  and  alone  for  the  purpose  of  determining  this  interest, 
was  this  bill  maintainable.  In  all  other  respects  the  chancellor  was 
right  in  his  decree  of  dismissal.  The  costs  of  this  court  and  the  court 
below  will  be  borne  by  complainants. 


GLOVER  V.  CONDELL. 

(Supreme  Court  of  Illinois,  1896.     163  III.  566,  45  N.  E.  17.3,  35  L.  R.  A.  360.) 

Appeal  from  appellate  court,  Third  district. 

Action  in  equity  by  Mary  J,  Glover  and  others  against  Moses  B 
Condell  and  others.  From  a  decree  of  the  appellate  court  (56  111.  App 
107),   reversing  that  of   the  circuit  court,  plaintiffs  appeal.     Revers- 

p^^  *        *        *   10 

The  material  facts,  as  set  up  in  the  pleadings  and  as  established  by 
the  proofs,   are  substantially  as   follows:     Thomas  Condell  died  on 

10  Part  of  the  statement  of  facts  is  oioitted. 


344  ESTATES    IN    EXPECTANCY 

October  11,  1880,  in  Lyon  county,  Kan.,  leaving  a  will,  dated  Decem- 
ber 23,  1865,  and  a  codicil  thereto,  dated  August  19,  1867. 

The  will  is  as  follows : 

"I,  Thomas  Condell  of  Sangamon  county,  in  the  state  of  Illinois, 
do  make  and  ordain  this,  my  last  will  and  testament,  in  manner  follow- 
ing, to  wit : 

"First.  I  devise  to  my  wife,  Elizabeth  H.  Condell,  so  much  of  my 
household  and  kitchen  furniture  and  provisions  as  she  may  think  fit  tc^ 
retain  for  her  own  use. 

"Secondly.  I  direct  that  my  executors,  herinafter  named,  shall  sell 
all  the  rest  of  my  estate,  real  and  personal,  which  I  may  leave  at  my 
death,  except  my  homestead,  on  such  terms  as  they  may  deem  advisa- 
ble; and  they  are  also  authorized  to  sell  my  homestead,  with  the  con- 
sent of  my  wife,  Elizabeth  H.  Condell,  and  to  make  all  necessary  and 
proper  conveyances  of  such  real  estate  as  they  may  sell. 

"Thirdly.  Out  of  the  first  proceeds  of  my  estate  my  executors  are 
to  pay  to  my  wife,  Elizabeth  H.  Condell,  such  an  amount  as  will,  with 
the  amount  charged  to  her  in  the  account  attached  to  this  will,  make 
up  the  sum  of  five  thousand  dollars,  to  be  at  her  absolute  disposal. 

"Fourthly.  All  the  remainder  of  the  proceeds  of  my  estate,  includ- 
ing cash  on  hand,  debts  due  to  me,  stocks,  or  bonds,  to  which  shall  be 
added  all  the  advances  I  have  heretofore  made  to  each  one  of  my 
children  or  shall  hereafter  make  from  time  to  time,  as  the  same  are 
or  hereafter  may  be  charged  and  set  forth  in  the  account  attached  to 
this  will,  which  account  will  be  charged  in  my  own  handwriting,  and 
the  sum  of  my  estate  then  on  hand,  composed  of  all  advances  made  to 
my  children,  debts  due  to  me  by  my  children  for  money  loaned  them, 
debts  due  to  me  by  other  persons,  stocks,  bonds,  etc.  (except  the  specific 
sum  devised  to  my  wife),  shall  then  be  divided  into  six  equal  parts, — 
one  part  for  the  use  of  hiy  wife,  and  one  part  for  the  use  of  each 
of  my  children,  Moses  B.  Condell,  Mary  Jane  Glover,  Thomas  E. 
Condell,  Emily  Montgomery,  and  Albert  B.  Condell,  to  be  disposed 
of  as  hereinafter  directed,     *     *     * 

"(f)  The  part  devised  to  my  son  Albert  B.  Condell  is  to  be  kept  by 
my  executors  entire  at  interest  or  invested  until  he  shall  arrive  at  legal 
age,  and  so  much  of  the  interest  or  dividends  as  may  be  necessary  to 
his  support  and  to  give  him  a  good  education  shall  be  applied  to  that 
purpose  by  my  executors ;  and  when  he  shall  arrive  at  lawful  age  he 
is  to  receive  one-third  of  his  sixth  part,  and  the  other  two-thirds  of 
the  sixth  part  devised  to  him  is  to  be  held  by  my  executors  as  trustees, 
and  in  trust  for  him,  and  is  to  be  loaned  out  on  good  security,  or  kept 
invested  in  stocks,  and  the  interest  or  dividends  is  to  be  paid  to  him  as 
the  same  accrues  and  is  received  during  his  natural  life,  and  after  his 
death  the  principal  of  his  share  or  part  is  to  be  paid  to  his  heirs. 

"(g)  If,  by  misfortune,  affliction,  or  otherwise,  any  of  my  children 
should  not  make  a  proper  use  of  the  income  to  be  derived  from  their  , 
trust  fund,  my  executors  and  trustees  are  hereby  directed  and  authoriz- 


FUTURE   ESTATES — UNDER  THE   STATUTE   OF  WILLS  345 

ed  to  use  said  income  in  such  a  manner  as  will  insure  to  them  the 

necessaries  of  life  and  to  keep  them  from  want.     In  the  event  of  the 

death  of  any -of  my  children  without  the  living  heirs  of  their  bodies, 

their  share  of  my  estate  shall  be  added  to  the  sum  held  in  trust  for 

the  benefit  of  my  wife,  Elizabeth  H.  Condell,  during  her  natural  life, 

and  after  her  death  the  same  shall  be  divided  amongst  my  children  in 

the  same  manner  as  is  provided  for  the  distribution  of  her  share. 
*     *     * " 

The  testator's  wife,  Elizabeth  H.  Condell,  died  intestate  in  his  life- 
time, to  wit,  on  December  5,  1876.  He  left  no  widow,  but  five  children, 
namely,  Moses  B.  Condell,  Mary  J.  Glover,  Thomas  E.  Condell,  Emily 
Montgomery,  and  Albert  B.  Condell  (the  latter  since  deceased),  his 
heirs  and  legatees  under  his  will.     *    *     * 

Magruder,  C.  J.^^  *  *  *  After  these  preliminary  explana- 
tions, the  provision  of  the  will  in  regard  to  the  disposition  of  the  fund 
in  controversy,  which  represents  two-thirds  of  the  sixth  part  devised 
by  the  testator  to  Albert,  is  substantially  and  in  brief  as  follows :  The 
executors,  as  trustees,  are  to  hold  said  two-thirds  in  trust  for  Albert, 
and  lend  it  out  or  invest  it,  and  pay  him  the  interest  or  dividends  there- 
from during  his  life,  and,  after  his  death,  pay  the  principal  thereof 
to  his  heirs;  but,  in  the  event  of  his  death  without  living  heirs  of  his 
body,  the  same  is  to  be  divided  among  the  children  of  the  testator  in 
such  proportions  as  their  circumstances  may  require  to  keep  them  from 
want,  or  to  furnish  them  with  the  necessaries  of  life  for  themselves 
and  children. 

The  question  again  recurs :  What  interest  in  the  two-thirds  of  Al- 
bert's share  did  this  provision  of  the  will  give  to  the  children  of  the 
testator  after  the  death  of  Albert  without  living  heirs  of  his  body? 
Leaving,  for  the  present,  the  consideration  of  the  original  gift,  it  can- 
not be  said  that  there  are  any  words  in  the  gift  over  which  import  an 
indefinite  failure  of  issue,  or  contravene  the  rule  against  perpetuities. 
The  language  of  the  gift  over  is  that,  "in  the  event  of  the  death  of  any 
of  my  children  without  living  heirs  of  their  body,"  etc.  The  words 
"without  living  heirs  of  their  body"  import  a  definite  failure  of  issue, 
and  the  language  used  refers  to  the  death  of  any  one  of  the  children 
of  the  testator  without  heirs  of  his  body,  or  issue,  living  at  the  time  of 
his  death.  Smith  v.  Kimbell,  153  111.  368,  38  N.  E.  1029.  Where  the 
limitation  over  is  upon  the  first  taker  "dying  without  issue  living," 
the  will  means  issue  living  at  the  death  of  the  first  taker,  and  the  limita- 
fioh  over  is  not  too  remote,  but  is  good  as  an  executory  devise.  4  Kent, 
Comm.  (12th  Ed.)  marg.  p,  277.  Where  the  bequest  is  of  personal 
property,  slight  circumstances  and  other  expressions  in  the  will  will 
be  laid  hold  of  as  indications  of  an  intention  that  a  limitation  over  on 
death  without  issue  shall  take  effect  at  a  definite  time,  to  wit,  at  the 

»i  Part  of  the  opinion  is  omitted. 


346  ESTATES    IN    EXPECTANCY 

death  of  the  first  taker.    Bedford's  Appeal,  40  Pa.  18 ;  Ladd  v.  Harvey, 
21  N.  H.  514;  4  Kent,  Comm.  (12th  Ed.)  marg.  p.  282. 

The  construction  of  the  words  of  the  gift  over  in  the  case  at  bar 
as  importing  a  definite  failure  of  issue  is  supported,  not  only  by  the 
use  of  the  qualifying  word  "living,"  but  also  by  the  fact  that  the 
share  of  any  one  of  the  children  dying  without  living  heirs  of  his  body 
is  to  be  divided  among  the  remaining  children  of  the  testator.  These 
children  are  mentioned  by  name  in  the  will,  and  belong  to  the  same 
class  as  the  first  taker,  and  must  be  regarded  as  his  survivors,  or  per- 
sons in  being  at  the  time  of  his  death.  As  was  said  by  Mr.  Justice 
Strong,  in  Bedford's  Appeal,  supra:  "It  has  often  been  held  that  a 
limitation  over,  by  will,  to  survivors,  or  persons  in  being,  after  the 
death  of  the  first  taker  without  issue,  raises  a  strong  presumption  that 
the  testator  did  not  contemplate  an  indefinite  failure  of  issue."  A  gift 
over  upon  a  definite  failure  of  issue  does  not  alter  the  construction 
of  the  preceding  limitation,  but  ingrafts  upon  it  an  executory  devise, 
to  operate  upon  the  happening  of  the  event  specified.  11  Am.  &  Eng. 
Enc.  Law,  p.  924.  As  applied  to  land,  an  executory  devise  is  "such 
a  limitation  of  a  future  estate  or  interest  in  lands  as  the  law  admits 
in  the  case  of  a  will,  though  contrary  to  the  rules  of  limitation  in  con- 
veyances at  common  law."  2  Washb.  Real  Prop.  (5th  Ed.)  marg.  p. 
341.  One  species  of  executory  devise,  as  applied  to  lands,  is  "where 
a  fee  simple  is  devised  to  one,  but  is  to  determine  upon  some  future 
event,  and  the  estate  thereupon  to  go  over  to  another."  Id.  p.  344. 
Or,  stated  more  generally,  one  species  of  executory  devise  relative  to 
real  estate  is  "where  the  devisor  parts  with  his  whole  estate,  but,  upon 
some  contingency,  qualifies  the  disposition  of  it,  and  limits  an  estate 
on  that  contingency."  4  Kent,  Comm.  marg.  p.  268.  Limitations  over 
upon  the  death  of  the  first  taker  without  issue  are  construed  as  execu- 
tory devises  on  definite  failure  of  issue  after  an  estate  in  fee  simple. 
2  Jarm.  Wills  (Rand.  &  T.  5th  Am.  Ed.)  p.  485.  Thus,  a  devise  to 
A.  and  his  heirs,  with  a  gift  to  B.  in  case  A.  dies  without  issue  surviv- 
ing him  at  the  time  of  his  death,  gives  B.  an  executory  devise.  20  Am. 
&  Eng.  Enc.  Law,  p.  920,  and  cases  cited  in  note  1. 

Substantially  the  same  rule  applies  to  personal  property.  It  has  been 
said  that  all  future  interests  in  personalty,  whether  vested  or  contin- 
gent, and  whether  preceded  by  a  prior  interest  or  not,  are  in  their  na- 
ture executory,  and  fall  under  the  rules  by  which  that  species  of  limita- 
tion is  regulated.  20  Am.  &  Eng.  Enc.  Law,  p.  930.  Preston  divides 
executory  limitations  of  personalty  into  three  kinds,  and  says  that  the 
second  sort  is  where  there  is  a  complete  disposition  of  the  property, 
and  there  is  a  substitution  of  another  person  to  take  in  some  event 
which  is  to  defeat  or  abridge  the  former  gift.  2  Prest.  Abst.  142,  143 ; 
20  Am.  &  Eng.  Enc.  Law,  p.  936.  Here,  the  original  disposition  of 
the  two-thirds  part  of  Albert's  share  was  that  it  should  be  held  in  trust 
by  the  trustees,  and  invested,  and  the  interest  or  dividends  paid  to  him 
during  his  life,  and  after  his  death  the  principal  of  his  share  was  to  be 


FUTURE    ESTATES — UNDER   THE   STATUTE    OF    WILLS  347 

paid  to  his  heirs.  It  is  a  general  rule  that,  where  there  is  a  gift  of  per- 
sonalty to  A.  and  his  heirs,  A.  will  take  the  absolute  interest.  Strictly, 
the  words  "heirs"  and  "heirs  of  his  body"  are  inapplicable  to  personal 
property.  Whereas  real  estate  is  conveyed  to  a  man,  his  heirs  and 
assigns,  personal  property  is  assigned  to  him,  his  executors,  adminis- 
trators, and  assigns.  So,  where  there  is  a  gift  to  A.  and  his  representa- 
tives, A.  will  take  the  absolute  property.  So,  also,  a  gift  to  A.  for  life, 
and  then  to  his  personal  representatives,  will  give  A.  the  absolute  prop- 
erty. Williams,  Pers.  Prop.  marg.  pp.  242,  243 ;  Theob.  Wills  (2d  Ed.) 
p.  371 ;  29  Am.  &  Eng.  Enc.  Law,  pp.  436,  437. 

This  rule  applies  where  the  personal  property  is  in  the  hands  of 
trustees.  "Thus,  if  money  or  stock  be  settled  in  trust  for  A.  for  life, 
and  after  his  decease  in  trust  for  his  executors,  administrators,  and 
assigns,  A.  will  be  simply  entitled  absolutely,  in  the  same  manner  as  a 
gift  of  lands  to  A.  for  his  life,  with  remainder  to  his  heirs  and  as- 
signs, gives  him  an  estate  in  fee  simple."  Williams,  Pers.  Prop.  marg. 
p.  244.  This  is  an  application  by  analogy  of  the  rule  in  Shelley's  Case 
to  personal  property.  22  Am.  &  Eng.  Enc.  Law,  p.  512,  and  cases 
<;ited  in  note  3.  Though,  strictly  speaking,  this  rule  has  reference  to 
real  estate  only,  yet  it  is  often  applied  to  grants  of  personalty  by  way 
of  analogy,  for  the  purposes  of  construction,  and  when  so  applied 
yTelds  more  readily  to  the  apparent  intention  of  the  testator  than  it 
does  in  grants  of  realty.  Taylor  v.  Lindsay,  14  R.  I.  518;  Williams, 
Pers.  Prop.  marg.  p.  244;  Home  v.  Lyeth,  4  Har.  &  J.  (Md.)  431.  The 
rule  in  Shelley's  Case  applies  to  equitable  as  well  as  legal  estates,  but 
requires  that  both  estates  (the  prior  estate  limited  to  the  ancestor,  and 
the  subsequent  estate  limited  to  the  heirs)  shall  be  of  the  same  quality 
(that  is,  both  legal,  or  both  equitable),  because,  if  the  prior  estate  is 
an  equitable  or  trust  estate,  and  the  subsequent  estate  is  a  legal  one. 
the  two  do  not  unite  as  an  estate  of  inheritance  in  the  ancestor.  4 
Kent,  Comm.  marg.  pp.  210,  211.  Thus,  if  the  legal  estate  is  given  tc- 
A.  in  trust  for  B.  for  life,  and  the  legal  remainder  to  the  heirs  of  B. 
at  his  death,  the  rule  cannot  apply,  as  the  legal  and  equitable  estates 
cannot  so  coalesce  as  to  give  B.  either  a  legal  or  equitable  fee.  1  Perry, 
Trusts  (3d  Ed.)  §  358.  So,  also,  if  the  trustee  holding  the  property 
for  A.  for  life  has  active  duties  to  perform,  but  at  the  death  of  A.  the 
trust  for  the  heirs  is  merely  passive,  the  statute  will  execute  the  use. 
so  that  the  estate  of  the  heirs  is  a  legal  one,  while  the  prior  estate  is 
equitable.    22  Am.  &  Eng.  Enc.  Law,  p.  509,  and  cases  in  note  4. 

But  personal  property  is  not  within  the  statute  of  uses.  In  the  case 
at  bar,  the  trustees  were  to  hold  the  proceeds  of  sale — the  money  or 
securities  representing  two-thirds  of  Albert's  share — during  his  life, 
and  invest  the  same,  and  pay  him  the  interest  during  his  life;  so  that 
the  trust  was  an  active  one,  and  his  estate  was  equitable.  At  his  death 
the  principal  of  the  share  is  to  be  paid  to  his  heirs,  and  so,  for  the  pur- 
pose of  turning  the  share  over  to  the  heirs  by  payment,  or  delivery,  or 
assignment  of  securities,  the  legal  title  at  his  death  still  remained  in 


348  ESTATES    IN    EXPECTANCY 

the  trustees,  and,  until  such  payment,  delivery,  or  assignment,  the  es- 
tate of  the  heirs  was  equitable.  In  such  cases  the  legal  title  remains 
in  the  trustee  "until  the  purposes  of  the  trust  are  accomplished,  and 
until  the  possession  of  the  property  is  in  some  way  transferred  to  the 
person  entitled  to  the  use,  or  the  last  use."  1  Perry,  Trusts  (3d  Ed.) 
303,  311;  Kirkland  v.  Cox,  94  111.  400.  H,  therefore,  in  this  case,  the 
original  devise  to  the  trustees  of  the  fund  to  be  invested  for  Albert 
during  his  life,  and  to  be  paid  to  his  heirs  at  his  death,  considered  sep- 
arately from  the  gift  over  to  the  children  of  the  testator,  be  construed 
by  the  application  thereto  of  the  principles  involved  in  Shelley's  Case, 
it  cannot  be  said  that  the  prior  estate  (given  for  life  to  Albert)  and 
the  subsequent  estate  (to  go  to  his  heirs)  are  not  both  of  the  same  qual- 

But,  whether  the  rule  in  Shelley's  Case  be  applied  by  analogy  to  the 
original  devise  or  bequest  herein  mentioned,  or  whether  it  be  regarded 
as  a  gift  to  Albert  and  his  heirs,  in  either  case  he  thereby  took  the 
ownership  of  the  fund,  subject  to  the  limitation  over  thereof  to  the 
children  of  the  testator,  upon  the  contingency  of  his  death  without 
living  heirs  of  his  body  at  the  time  of  his  death.  At  common  law 
there  could  be  no  limitation  over  of  a  chattel,  so  that,  where  a  chattel 
or  other  personal  property  was  given  to  one  for  life,  with  a  limitation 
over  to  another,  the  former  took  the  absolute  title,  and  the  limitation 
over  was  void,  both  at  law  and  in  equity;  but  in  the  course  of  time 
equity  has  established  the  doctrine  that,  where  there  is  a  gift  of  per- 
sonal property  to  one  for  life,  with  a  limitation  over  to  another,  such 
limitation  is  good  as  an  executory  devise.  Welsch  v.  Bank,  94  111.  191 ; 
2  Kent,  Comm.  marg.  p.  352;  1  Schouler,  Pers.  Prop.  §  138. 

Cases  which  hold  that,  where  there  is  a  gift  of  personal  property 
to  A.  and  his  heirs,  A.  takes  the  property  absolutely,  and  there  can  be 
no  limitation  over  in  the  event  of  his  dying  without  issue,  will  be 
found,  upon  examination,  to  be  cases  where  the  words  used  import  an 
indefinite  failure  of  issue.  Thus,  in  Albee  v.  Carpenter,  12  Cush. 
(Mass.)  382,  it  was  held  that  a  devise  to  A.  and  his  heirs  of  the  residue 
of  the  testator's  property,  "and  if  said  A.  die  without  issue  or  heirs," 
remainder  over  to  others,  gave  A.  an  estate  tail  by  implication ;  and 
that  any  words  in  a  devise  of  real  estate  which  would  give  an  estate 
tail  to  the  first  taker,  with  or  without  a  remainder  over,  would,  in  a 
bequest  of  personal  property,  give  the  first  taker  an  absolute  estate, 
and  the  remainder  over  would  be  void.  But  the  holding  was  placed 
upon  the  ground  that  the  gift  over  was  upon  a  general  failure  of  issue, 
and  for  that  reason  made  the  estate  an  estate  tail  in  the  first  taker, 
and  it  was  there  said  by  Chief  Justice  Shaw :  "  'If  she  has  no  issue 
living  at  the  time  of  her  decease'  may  be  a  contingency  the  happening 
of  which  may  give  effect  to  a  bequest  over  as  an  executory  devise,  be- 
cause it  must  vest  at' her  decease,  and  therefore  has  no  greater  effect 
than  a  gift  for  life." 


FUTURE    ESTATES — UNDER   THE   STATUTE    OF   WILLS  349 

So,  in  the  case  at  bar,  the  words  of  the  gift  over  have  been  con- 
strued to  mean,  in  substance,  that  if  Albert  shall  die  without  heirs  of 
his  body  living  at  the  time  of  his  death,  the  fund  shall  be  divided 
among  the  testator's  children,  and  therefore  effect  will  be  given  to 
the  gift  or  bequest  over  as  an  executory  devise.  "Limitations  over  in 
chattels  have  been  supported  like  limitations  of  real  property  very 
generally.  Holms  v.  Williams,  1  Root,  332,  and  many  other  cases. 
In  many  of  the  foregoing  cases,  limitations  of  personal  property  over 
upon  failure  of  issue  of  the  first  taker  have  been  held  good,  as  limited 
upon  a  definite  failure  of  issue."  3  Jarm.  Wills  (Rand.  &  T.  5th  Am. 
Ed.)  p.  374,  note  1.  In  Theob.  Wills  (2d  Ed.)  p.  371,  after  stating  the 
doctrine  that  a  bequest  of  personalty  to  a  man  and  his  heirs  would  no 
doubt  pass  the  absolute  interest,  the  author  says :  "Of  course,  if,  in 
wills,  *  *  *  the  gift  over  upon  failure  of  issue  can  be  limited 
to  failure  of  issue  at  the  death  of  the  tenant  for  life,  a  prior  gift  to 
A.  and  the  heirs  of  his  body  gives  A.  an  interest,  defeasible  upon  fail- 
ure of  issue  at  his  death."  Here  Albert  took  an  absolute  interest  in 
the  fund,  defeasible  upon  failure  of  living  heirs  of  his  body  at  his 
death.  And  this  is  so  notwithstanding  the  fund  was  in  the  hands  of 
trustees.    *    *    * 

This  court  has  held  in  a  number  of  cases  that,  although  a  fee'cannot 
be  limited  upon  a  fee  by  deed,  yet  it  can  be  so  limited  by  will  by  way 
of  executory  devise.  Ackless  v.  Seekright,  Breese,  76;  Siegwald  v. 
Siegwald,  Z7  111.  430;  McCampbell  v.  Mason,  151  111.  500,  38  N.  E. 
672;  Smith  v.  Kimbell,  153  111.  368,  38  N.  E.  1029;  Palmer  v.  Cook, 
159  111.  300,  42  N.  E.  796,  50  Am.  St.  Rep.  165.  The  case  of  Ewing 
v.  Barnes,  156  111.  61,  40  N.  E.  325,  so  far  as  it  holds  to  the  contrary, 
is  overruled.  The  language  used  in  Silva  v.  Hopkinson,  158  111.  386, 
41  N.  E.  1013,  should  be  construed  as  applicable  only  to  the  facts  of 
that  case,  and  not  as  contravening  the  doctrine  of  Siegwald  v.  Sieg- 
wald, supra,  and  the  other  cases  of  a  like  character  above  referred  to. 
If  a  fee  can  be  limited  upon  a  fee  by  way  of  executory  devise  as  to  real 
estate,  there  is  no  reason  why,  in  case  of  a  gift  of  personal  property 
to  one  person,  there  cannot  be  a  limitation  over  of  such  property  by 
way  of  executory  devise  to  other  persons,  especially  where,  as  here, 
the  latter  belong  to  the  same  class  as  the  first  taker,  provided,  always, 
such  limitation  over  does  not  contravene  the  rule  against  perpetuities ; 
that  is  to  say,  provided  it  is  to  take  effect  upon  a  definite  failure  of  is- 
sue. Indeed,  Mr.  Gray,  in  his  work  on  the  Rule  against  Perpetuities, 
says,  at  the  close  of  the  chapter  on  "Future  Interests  in  Real  Estate 
and  Personal  Property"  (section  98) :  "The  result  of  the  investigation 
pursued  in  the  present  chapter  is  this :  Originally,  the  creation  of  fu- 
ture interests  at  law  was  greatly  restricted,  but  now,  either  by  the 
statute  of  uses  and  wills,  or  by  modern  legislation,  or  by  the  gradual 
action  of  the  courts,  all  restraints  on  the  creation  of  future  interests, 
except  those  arising  from  remoteness,  have  been  done  away." 

From  what  has  been  said,  it  follows  that,  Albert  having  taken  an  ab- 


350  ESTATES    IN    EXPECTANCY 

solute  interest  in  the  fund  in  question,  determinable  in  the  event  of  hi? 
death,  and  having  died  without  living  heirs  of  his  body  at  the  time  of 
his  death,  the  fund  is  to  be  divided  among  the  surviving  children  of 
the  testator,  to  wit,  Mary  J.  Clover,  Emily  Montgomery,  Thomas  E. 
Condell,  and  Moses  B.  Condell,.  in  such  proportions  as  their  circum- 
stances may  require  to  keep  them  from  want,  or  to  furnish  them  with 
the  necessities  of  life  for  themselves  and  their  children,  and  that  the 
appellee,  Moses  B.  Condell,  is  entitled  to  participate  in  that  division, 
unless  the  interest  to  come  to  him  upon  such  division  has  been  released 
by  the  quitclaim  deed  executed  by  him.  The  interest  of  appellee  in 
the  share  of  his  brother  yVlbert  had  not  accrued  when  the  quitclaim 
was  executed.  It  was,  then,  a  future  contingent  interest,  which  might 
never  ripen  into  possession.  It  was  limited  to  take  effect  upon  a  con- 
tingency which  might  never  happen,  to  wit,  upon  the  death  of  Albert 
without  living  heirs  of  his  body.  By  an  executory  devise  no  estate 
vests  upon  the  death  of  the  testator,  but  only  on  some  future  contin- 
gency. Bristol  V.  Atwater,  50  Conn.  402;  Griswold  v.  Greer,  18  Ga. 
545. 

We  do  not  deem  it  necessary  to  discuss  the  question  whether  such 
a  contingent  executory  interest  is  assignable  in  equity  or  not.  For  the 
purposes  of  the  present  case  it  may  be  admitted  that  such  an  interest 
is  assignable.  If  the  instrument  of  release  executed  by  appellee  pur- 
ported to  release  a  future  interest  of  any  kind,  then  the  question  of 
the  assignability  of  the  interest  in  question  would  be  presented.  But 
the  release  is  an  ordinary  quitclaim  of  all  the  "claim,  right,  title,  and 
interest,"  etc.,  of  appellee  and  his  wife,  and  contains  no  covenants  of 
warranty.  It  is  well  settled  that  such  an  interest  does  not  pass  a  sub- 
sequently acquired  interest.  Holbrook  v.  Debo,  99  111.  372.  "A  con- 
veyance of  all  the  right,  title,  and  interest  in  lands  is  certainly  suffi- 
cient to  pass  the  land  itself,  if  the  party  conveying  has  an  estate 
therein  at  the  time  of  the  conveyance,  but  it  passes  no  estate  which 
is  not  then  possessed  by  the  party."  Blanchard  v.  Brooks,  12  Pick. 
(Mass.)  47.  A  quitclaim  is  sufficient  to  pass  any  estate  which  the  per- 
son executing  it  has  at  the  time  of  such  execution,  but  it  cannot  affect 
by  way  of  release  a  future  contingent  interest  limited  to  the  surviving 
members  of  a  class  upon  the  event  of  the  death  of  one  of  them  with- 
out living  issue  at  the  time  of  his  death,  there  being  no  terms  used  in 
such  quitclaim  or  release  which  can  be  construed  as  referring  to  future 
interests.    Striker  v.  Mott,  28  N.  Y.  82. 

In  order  to  create  an  assignment  of  future  interests  and  contingen- 
cies, "there  must  be,  on  the  face  of  the  instrument  expressly,  or  collect- 
ed from  its  provisions  by  necessary  implication,  language  of  present 
transfer,  directly  applying  to  the  future  as  well  as  to  the  existing 
property,  or  else  language  importing  a  present  contract  or  agreement 
taken  between  the  parties  to  sell  or  assign  the  future  property."  3 
Pom.  Eq.  Jur.  §  1290.  Here  the  quitclaim  does  not  amount  to  a  re- 
lease of  future  interests.     While,  therefore,  the  instrument  of  release 


ALIENATION    OF   FUTURE    ESTATES  351 

executed  by  Moses  B.  Condell  has  the  effect  of  passing  all  his  interest 
in  the  share  specifically  set  off  to  him  or  for  his  use  in  his  father's 
estate,  yet  it  did  not  have  the  effect  of  passing  the  future  contingent 
interest  in  his  brother  Albert's  share  limited  over  to  him  so  as  to  take 
effect  only  in  the  uncertain  event  of  Albert's  death  without  living  heirs 
of  his  body.  *  *  * 
Reversed  and  remanded. 


VI.  Alienation  of  Future  Estates" 


GODMAN  V.  SIMMONS. 
(Supreme  Court  of  Missouri,  Division  No.  1,  1892.     113  Mo.  122,  20  S.  W.  972. > 

Appeal  from  circuit  court,  Saline  county ;  Richard  Field,  Judge. 

JEjectment  by  William  C.  Godman  and  others  against  Henry  C.  Sim- 
mons and  another.  From  a  judgment  for  defendants,  plaintiffs  appeal. 
Affirmed. 

Brace,  J.  This  is  an  action  in  ejectment,  in  which  the  plaintiffs 
seek  to  recover  an  undivided  three  fourths  of  a  tract  of  land  in  Saline 
county.  The  answer  admitted  possession,  and  denied  all  the  other  ma- 
terial allegations  of  the  petition.  The  case  was  tried  before  the  court 
without  a  jury,  the  judgment  was  for  the  defendants,  and  the  plaintiffs 
appeal. 

Elizabeth  O'Bannon  is  the  common  source  of  title.  On  the  26th  day 
of  October,  1868,  she  and  her  husband  duly  executed,  acknowledged, 
and  delivered  a  warranty  deed  conveying  the  premises  to  Mary  R.  God- 
man  "for  and  during  her  natural  life,  and  with  remainder  to  the  heirs 
of  her  body.  *  *  *  'pQ  have  and  to  hold  the  premises  hereby  con- 
veyed with  all  the  rights,  privileges,  and  appurtenances  thereto  belong- 
ing, or  in  any  wise  appertaining,  unto  the  said  Mary  R.  Godman  during 
her  natural  life,  and  then  to  the  heirs  of  her  body  and  assigns  forever."^ 
The  plaintiffs,  William  C.  Godman,  Josephine  C.  Way,  and  Mattie  B. 
Naylor,  are  the  children  of  the  said  Mary  R.  Godman,  who  died  in 
March  1888.  Besides  the  plaintiffs,  the  said  Mary  R.  Godman  had 
three  other  children, — Burton  L.  Godman,  who  died  in  1876;  Mollie, 
who  intermarried  with  one  Emmerson,  and  afterwards  died  in  Febru- 
ary, 1880,  leaving  one  child,  Edward,  surviving  her;  and  Beal  God- 
man, who  died  in  September,  1888,  without  lineal  descendants. 

The  plaintiffs,  after  showing  these  facts,  rested,  and  the  defendants, 
upon  their  part,  introduced  in  evidence  a  deed  of  trust  executed  by 
Melvin  Godmah  and  the  said  Apiary  R.  Godman,  his  wife,  the  said  Wil- 
liam C.'  Godman  and  wife,  John  B.  Way  and  the  said  Josephine  C. 
Way,  his  wife,  and  the  said  Burton  L.  Godman  and  Mollie  Godman,  to 
Samuel  Boyd,  trustee,  to  secure  the  payment  of  a  promissory  note  to 

12  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  158. 


352  ESTATES    IN    EXrECTANCY 

one  George  Farlow  for  $1,300,  due  one  year  after  date,  with  power  of 
sale  upon  default  in  payment  of  the  debt  at  maturity.  This  deed  was 
dated  April  4,  1876.  The  defendants  also  offered  the  note,  secured  by 
said  deed  of  trust,  which  is  signed  by  all  of  the  grantors  therein.  The 
defendants  next  offered  a  deed  from  Samuel  Boyd,  trustee,  to  Henry 
Emmerson,  dated  October  10,  1877.  This  deed  was  made  in  pursuance 
of  a  sale  under  the  power  contained  in  the  foregoing  deed  of  trust. 
The -defendants  next  offered  a  deed  dated  October  19,  1878,  containing 
covenants  of  general  warranty,  from  Henry  Emmerson  and  wife  to  de- 
fendant Henry  C.  Simmons,  and  then  a  deed  dated  January  27,  1880, 
from  Henry  C.  Simmons  and  wife  to  Melvin  Godman.  Next  a  deed 
of  trust  of  same  date  from  Melvin  Godman  and  wife  to  W.  R.  Gist, 
trustee,  to  secure  an  indebtedness  due  to  said  H.  C.  Simmons,  and  a 
deed  from  Gist,  trustee,  under  the  power  of  sale  contained  in  said  deed 
of  trust,  to  Henry  C.  Simmons,  dated  September  1,  1886.  The  defend- 
ants next  offered  a  deed  dated  April  3,  1880,  from  Beal  Godman  to 
Melvin  Godman,  and  deed  dated  May  23,  1881,  from  Mattie  B.  Naylor 
and  husband,  conveying  her  undivided  interest  in  the  land  to  Melvin 
Godman. 

The  plaintiffs  objected  to  the  introduction  of  each  of  the  foregoing 
deeds  on  the  ground  that  same  "was  incompetent,  irrelevant,  and  im- 
material," and  the  objection  in  each  instance  was  overruled  by  the 
court.  They  also  asked  declarations  of  law  in  effect  excluding  said 
deeds,  and  declaring  that  the  plaintiffs  had  the  title  to  the  land  sued  for, 
which  instructions  or  declarations  of  law  the  court  refused  to  give,  and 
plaintiffs  excepted. 

1.  It  is  provided  by  the  statute  of  this  state  that  "when  a  remainder 
shall  be  limited  to  the  heirs,  or  heirs  of  the  body,  of  a  person  to  whom 
a  life  estate  in  the  same  premises  shall  be  given,  the  persons  who,  on  the 
termination  of  the  life  estate,  shall  be  the  heir,  or  heirs  of  the  body,  of 
such  tenant  for  life,  shall  be  entitled  to  take  as  purchasers  in  fee  sim- 
ple, by  virtue  of  the  remainder  so  limited  to  them."  Rev.  St.  1889,  § 
8838;  Gen.  St.  1865,  p.  442,  §  6.  The  deed  of  Elizabeth  O'Bannon 
came  before  us  for  construction  in  the  recent  case  of  Emmerson  v. 
Hughes,  110  Mo.  627,  19  S.  W.  979,  and  we  there  held  "that  the  statute 
just  quoted  converted  the  estate  tail  created  by  the  deed  at  common  law 
into  a  life  estate  in  the  first  taker,  with  a  contingent  remainder  in  fee 
simple  in  favor  of  those  persons  who  should  answer  the  description  of 
heirs  of  her  body ;"  and  as  no  one  can  be  the  heir  of  a  living  person, 
it  could  not  be  told  who  the  heirs  of  the  body  of  Mary  R.  Godman 
would  be  until  her  death,  when  the  contingent  remainder  in  fee  under 
the  deed  would  vest ;  and  that  Mrs.  Emmerson,  not  being  alive  at  that 
time,  took  no  estate  under  the  deed  of  Mrs.  O'Bannon,  and  conveyed 
none  by  the  deed  of  trust  to  Boyd,  made  in  her  lifetime  before  the 
death  of  Mrs.  Godman.  In  her  case  she  had  no  vested  estate  at  the 
time  the  deed  was  made,  and  no  estate  ever  vested  afterwards. 

Now,  while  the  plaintiffs  and  Beal  Godman  were  in  the  same  relation 


ALIENATION   OF  FUTURE    ESTATES  '353 

to  the  title  to  the  premises  as  Mrs.  Emmerson  at  the  time  they  made 
their  deeds,  they  survived  their  mother,  and  their  remainder  contingent 
, during  the  lifetime  of  the  mother  became  a  vested  estate  at  her  death ; 
and  the  main  question  in  the  case  is,  did  this  estate  pass  by  their  deeds  ? 
The  deed  of  trust  executed  by  plaintiffs  William  C.  Godman  and  Jose- 
phine C.  Way  purported  to  convey  to  Boyd,  trustee,  the  premises  in  fee 
simple,  and  contained  the  statutory  covenants  implied  by  the  use  of  the 
words  "grant,  bargain,  and  sell."  The  deed  of  the  plaintiff  Mattie  B. 
Naylor  and  husband  purported  to  "grant,  bargain,  and  sell"  all  their 
interest  in  the  premises  to  Melvin  Godman.  In  the  language  of  the 
deed:  "The  interest  hereby  intended  to  be  conveyed  is  the  entire  in- 
terest of  Mattie  B.  Naylor  in  the  above-described  lands  as  one  of  the 
daughters  of  Mary  R.  Godman,  whether  present  or  prospective,  vested 
or  contingent,  and  especially  any  remainder  she  may  now  have,  or 
hereafter  be  entitled  to,  in  said  lands  under  a  certain  deed  made  by  M. 
W.  O'Bannon  and  wife  to  said  Mary  R.  Godman,  of  date  October  26, 
1868."  The  deed  of  Beal  Godman,  as  party  of  the  first  part,  purported 
to  "remise,  release,  and  forever  quitclaim"  unto  the  said  Melvin  God- 
man, party  of  the  second  part,  "all  of  his  right,  title,  interest,  and  estate 
in  expectancy  in  and  to"  the  premises  to  have  and  to  hold  the  same,  "so 
that  neither  said  party  of  the  first  part,  nor  his  heirs,  nor  any  other 
person  or  persons  for  him  or  in  his  name  or  behalf,  shall  or  will  claim 
or  demand  any  right  or  title  in  the  aforesaid  premises,  or  any  part 
thereof,  but  they  and  every  one  of  them  shall  by  these  presents  be  ex- 
cluded and  forever  barred." 

At  the  time  these  deeds  were  made  the  plaintiffs,  William  C.  God- 
man, Josephine  C.  Way,  and  Mattie  B.  Naylor,  and  their  brother  Beal 
Godman,  each  had  an  interest  in  this  real  estate.  The  estate  they  were 
to  have,  however,  was  contingent  upon  the  death  of  their  mother  and 
their  surviving  her.  The  first  event  was  sure  to  happen,  and  they  were 
sure  to  take  if  they  did  survive  her ;  but  whether  they  would  survive 
her,  and  thus  become  heirs  of  her  body,  was  uncertain,  and  hence  the 
interest  they  had  was  no  more  than  a  contingent  remainder,  and  a  con- 
tingent remainder  of  that  class  that  grows  out  of  the  uncertainty  of  the 
persons  to  take  at  the  determination  of  the  life  estate.  Such  an  interest 
was  not  alienable  at  common  law  before  the  contingency  happened.  2 
Washb.  Real  Prop.  (5th  Ed.)  p.  264,  §  6;  Tied.  Real  Prop.  (2d  Ed.)  § 
411 ;  6  Amer.  &  Eng.  Enc.  Law,  p.  900.  This  rule  of  the  common  law 
seems  to  have  been  abolished  in  England  by  8  &  9  Vict.  c.  106,  §  6,  pro- 
viding that  "after  the  first  day  of  October,  1845,  a  contingent,  an  exec- 
utory, and  a  future  interest,  and  a  possibility  coupled  with  an  interest, 
in  any  tenements  or  hereditaments  of  any  tenure,  whether  the  object  of 
the  gift  or  limitation  of  such  interest  or  possibility  be  or  be  not  ascer- 
tained, also  a  right  of  entry,  whether  immediate  or  future,  and  whether 
vested  or  contingent,  into  or  upon  any  tenements  or  hereditaments  in 
England  of  any  tenure,  may  be  disposed  of  by  deed,"  and  by  statute  in 
Burd.Cas.Real  Pkop. — 23 


354  ESTATES    IX    EXPECTANCY 

New  York,  Michigan,  IMinnesota,  and  Wisconsin,  making  all  expectant 
estates  alienable  in  the  same  manner  as  estates  in  possession.  2  Washb. 
Real  Prop.  p.  267,  §  5. 

In  this  state,  while  we  have  no  similar  express  statute,  our  statutes 
do  provide  that  "conveyances  of  lands,  or  of  any  estate  or  interest 
therein,  may  be  made  by  deed,"  (Rev.  St.  1889,  §  2395 ;)  that  all  estates 
and  interests  in  land  are  subject  to  be  seised  and  sold  under  execution, 
(Id.  §§  4915,  4917;)  and  that  any  person  having  an^  interest  in  real 
estate,  whether  the  same  be  present  or  future,  vested  or  contingent, 
can  come  into  partition  for  the  disposal  of  such  interest,  (Id.  §§  7136, 
7137.)  Reinders  v.  Koppelmann,  68  Mo.  482,  30  Am.  Rep.  802.  This 
rule  of  the  common  law  seems  to  be  inconsistent  with  the  general  scope 
of  our  statutes  regulating  the  disposal  of  real  estate,  and  not  in  har- 
mony with  the  genius  and  spirit  of  our  institutions,  which  brook  no 
restraint  upon  the  power  of  the  citizen  to  alienate  any  of  his  property. 
We  are  pre-eminently  a  trading  and  commercial  people ;  onr  lands  are 
our  greatest  stock  in  trade,  and  the  whole  tendency  of  our  laws  is  to 
encourage  and  not  restrain  their  alienation.  _The  spirit  and  genius  of 
the  feudal  system  and  the  common  law  was  exactly  the  reverse ;  and 
we  do  not  think  this  now  almost  oI)solete  common-law  rule  ought  to 
obtain  in  this  state. 

The  point  in  question,  so  far  as  we  are  advised,  has  never  been 
passed  upon  directly  in  our  appellate  courts;  but  the  St.  Louis  court 
of  appeals  had  occasion  to  consider  this  rule  in  Lackland  v.  Nevins,  3 
Mo.  App.  335,  and  that  court,  speak.ing  through  Judge  Bakewell,  said 
of  it:  "The  doctrine  that  contingent  interests  in  real  estate  cannot  be 
conveyed  by  law  remained  as  one  of  the  last  relics  of  a  system  of 
which  the  policy  was  to  hinder  the  alienation  of  land.  It  is  now  done 
away  with  in  England  by  statute.  It  is  contrary  to  the  policy  of  our 
system,  and  our  statute  of  conveyances,  which  says  that  'conveyances 
of  land,  or  of  any  estate  or  interest  therein,  may  be  made  by  deed 
executed,'  "  etc.  A  contingent  remainder  is  not  an  estate  in  lands, 
since  it  is  merely  the  chance  of  having,  but  it  is  an  interest  in  land, 
and  one  which  long  remained  inalienable,  simply  because  it  had  never 
been  thought  worth  legislating  about ;  so  that,  as  Williams  says,  (Wil- 
liams, Real  Prop.  257,)  "the  circumstance  of  a  contingent  remainder, 
having  been  so  long  inalienable  at  law,  was  a  curious  relic  of  the  an- 
cient feudal  system."  Our  statute  is  careful  to  make  alienable  by 
deed,  not  only  estates,  but  also  interests  in  land,  which  covers  the  case 
of  executory  devises  and  contingent  remainders  as  fully  as  if  they 
v.^ere  named. 

In  White  v.  McPheeters,  75  Mo.  286,  this  court  seemed  to  entertain 
no  doubt  that  under  our  statute  in  regard  to  executions,  which  declares 
that  the  term  "real  estate"  as  therein  used  "shall  be  construed  to  in- 
clude all  estate  and  interest  in  lands,  tenements,  and  hereditaments," 
the  sale  of  a  remainder  under  execution,  whether  it  be  regarded  as 
vested  or  contingent,  was  authorized.    It  would  be  remarkable,  indeed, 


ALIENATION   OF   FUTURE    ESTATES  355 

if  it  were  the  law  that  a  citizen  had  something  which  by  the  law  of  the 
land  he  could  not  sell  and  transfer  himself,  but  which  the  sheriff,  un- 
der execution,  could  sell  and  transfer  for  him.  This  ancient  common- 
law  rule  that  contingent  remainders  are  inalienable,  like  the  rule  that 
choses  in  action  are  not  assignable,  does  not  obtain  in  this  state,  not 
because  there  has  been  a  positive  statute  abolishing  these  rules,  but 
because  they  are  out  of  harmony  with  its  general  affirmative  statute 
upon  these  subjects,  and  long  since  have  ceased,  if  they  ever  did  ex- 
ist, as  rules  governing  the  action  of  its  citizens  in  the  business  rela- 
tions of  life. 

If,  then,  the  contingent  interests  of  the  said  three  plaintiffs  and  of 
the  said  Beal  Godman  in  the  premises  were  the  subject  of  grant  by 
deed  duly  executed  in  accordance  with  the  requirements  of  our  laws, 
the  effect  of  these  conveyances  was  to  transfer  to  the  grantees  such 
interests,  with  all  their  incidents,  to  hold  in  the  same  right  and  to  the 
same  extent  as  they  were  held  by  the  grantors  before  being  conveyed, 
— the  grantees  were  thereby  put  in  their  shoes.  If  the  grantors  died 
before  the  termination  of  the  life  estate,  the  grantees  took  nothing.  If 
"they  survived  their  mother,  the  grantees  took  just  what  the  grantors 
would  have  taken  if  the  conveyances  had  not  been  made.  There  can 
be  no  doubt  that  such  v^'as  the  intention  of  the  parties,  and  such  ought 
to  be,  and  we  believe  is,  the  effect  of  these  conveyances  under  the  laws 
of  this  state.  This  being  so,  the  defendant,  by  a  regular  chain  of  con- 
veyances, having  acquired  the  title  of  the  grantees  in  these  deeds  to 
the  premises,  the  judgment  of  the  circuit  court  was  for  the  right  party. 
There  was  some  evidence  pro  and  con  upon  the  question  of  the  de- 
livery of  the  deed  from  Beal  Godman. 

It  is  evident  from  the  instructions  and  finding  that  the  court  must 
have  found  this  question  of  fact  for  the  defendants,  and,  as  there  was 
evidence  tending  to  support  that  finding,  its  judgment  thereon  is  final. 
The  judgment  is  affirmed.    All  concur.^* 

13  In  accord  with  the  preceding  case,  at  least  to  the  effect  that  contingent 
remainders  are  alienable  under  statutes  providing  that  any  estate  or  interest 
in  real  property  may  be  conveyed,  see  McDonald  v.  Bank,  123  Iowa,  413,  9S 
N.  W.  1025  (1904)  ;  Sheirick  v.  Maxwell,  89  S.  W.  4,  28  Kv.  Law  Rep.  173 
(1905) ;  Summet  v.  Realty,  etc.,  Co.,  208  Mo.  501,  106  S.  W.  614  (1907) ;  Brown 
V.  Fulkerson,  125  Mo.  400,  28  S.  W.  632  (1894)  ;  Young  v.  Young,  89  Va.  675, 
17  S.  E.  470,  23  L.  R.  A.  642(1893).  Some  statutes  expressly  provide  that  "ex- 
pectant estates"  may  be  aliened,  and  it  is  also  held  that  under  such  statutes 
a  contingent  remainder  may  be  conveyed.  See  Defreese  v.  Lake,  109  Mich.  415, 
67  N.  W.  503,  32  L.  R.  A.  744,  63  Am.  St.  Rep.  584  (1896)  ;  Lauter  v.  Hirsch, 
67  Misc.  Rep.  165,  121  N.  Y.  Supp.  651  (1910)  ;  Griffin  v.  Shepard,  124  N.  Y. 
70,  26  N.  E.  339  (1891).  In  Whelen  v.  Phillips,  151  Pa.  312,  332,  25  Atl.  44 
(1892),  the  court  says:  "Without  inquiring  as  to  the  present  status  of  the 
law  elsewhere,  it  may  be  confidently  asserted  that  in  this  state  a  person,  sui 
juris,  owning  a  contingent  remainder  in  land,  may  sell  the  same."  However 
in  a  prior  decision  of  the  same  court,  Stewart  v.  Neely,  139  Pa.  309,  316,  20 
Atl.  1002  (1891),  the  court  said:  "A  contingent  remainder  can  only  be  con- 
veyed by  devise;  a  deed  purporting  to  convey  it  operates  only  as  an  estoppel, 
unless  the  conveyance  is  after  the  contingency  happens."  Some  of  the  mod- 
ern cases  distinguish  between  the  uncertainty  of  tlie  person  who  is  to  take  and 


356  THE   RULE   AGAINST  PERPETUITIES 


THE  RULE  AGAINST  PERPETUITIES 

I.  The  Rule  Stated^ 
1.  In  Geni:rai, 


Appeal  of  APPLETON. 

(Supreme  Court  of  Pennsylvania,  1890.     136  Pa.  354,  20  Atl.  521,  11  L.  R.  A. 

S5,  20  Am.  St.  Rep.  923.) 

Appeal  from  orphans'  court,  Philadelphia  county. 

Clark,  J.  John  Lawrence  died  domiciled  in  the  city  of  Philadel- 
phia, in  the  month  of  March,  1847.  By  his  last  will  and  testament  he 
devised  all  his  real  and  personal  estate  to  certain  persons  therein  named 
in  trust,  to  pay  over  the  net  income,  during  her  life-time,  to  his  daugh- 
ter, Ann  Appleton ;  to  assign  the  real  estate  upon  her  decease  in  fee 
to  the  appointees  of  her  last  will ;  or,  failing  such  appointment,  to 
pay  over  the  same  to  and  among  her  then  living  children,  and  the 
issue  of  children  then  deceased.  The  trustees  named  in  the  will  were 
removed  by  the  orphans'  court  of  Philadelphia  county,  during  the 
life-time  of  Ann  Appleton,  and  George  W.  Appleton  and  Henry  Pom- 
erene  were  duly  appointed  trustees  in  their  place.  All  the  property, 
except  certain  real  estate  in  Philadelphia,  was  lost  by  the  devastavit 
of  the  original  trustees;  the  remaining  property  being  known  as  "No. 
43  South  Second  Street,"  "No.  221  Arch  Street,"  and  "Nos.  1127  and 
1129  Pine  Street." 

Ann  Appleton,  the  donee  of  the  power,  died  in  March,  1883,  domi- 
ciled in  the  state  of  New  Jersey,  leaving  to  survive  her  certain  chil- 
dren, all  of  whom,  it  is  conceded,  were  born  during  the  life-time  of 
John  Lawrence.  By  her  last  will  and  testament  in  writing,  which  was 
afterwards  duly  probated,  she  devised  to  George  W.  Appleton,  and,  in 
the  event  of  his  renunciation  or  decease,  to  the  Philadelphia  Trust, 
etc..  Company,  certain  property  of  her  own,  in  Haddonfield,  N.  J., 
and  also  all  that  remained  of  the  property  over  which  she  held  the 
power  of  appointment,  under  the  will  of  John  Lawrence,  specifically 
referring  thereto,  in  trust  to  care  for  the  same,  and  collect  the  income 
thereof,  during  the  joint  lives  of  her  children,  all  of  whom,  as  we 
have  said,  were  living  at- the  death  of  John  Lawrence;  to  pay  out  of 
such  income  and  the  proceeds  of  sale  of  the  Haddonfield  property,  if 
sold  under  the  authority  given,  certain  annuities  mentioned,  during 

the  uncertainty  of  the  event,  holding  that,  If  the  person  is  ascertained,  his  in- 
terest may  be  conveved.  subject  to  the  continsiency  of  the  event/  Grayson 
V.  Tj'ler,  80  Ky.  358  (1SS2>  ;  Robinson  v.  Ins.  Co.,  75  Mi.sc.  Rep.  3G1,  133  N. 
Y.  Supp.  257  (1912).  See  Jenkins  v.  Bonsai,  116  Md.  G29,  82  Atl.  229  (1911). 
1  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  161. 


THE    RULE    STATED  357 

that  period;  and,  after  the  expiration  of  said  joint  lives,  to  transfer 
the  corpus  of  the  property  to  the  New  York  Baptist  Union  for  mir.- 
isterial  education,  which  is  the  corporate  name  of  what  is  known  as 
the  "Rochester  Theological  Seminary."  George  W.  Appleton  died 
December  1,  1886,  and,  the  Philadelphia  Trust,  etc..  Company  having 
renounced  the  trust,  the  office  of  trustee  under  the  appointment  in  the 
will  of  Ann  Appleton  became  vacant;  whereupon  Ann  Eliza  Griffin, 
one  of  the  annuitants  for  life,  presented  her  petition  for  the  appoint- 
ment of  a  successor  to  the  trust  created  by  the  donee  of  the  power. 

The  appellants  resisted  this  application,  alleging  that  the  execution 
of  the  power  by  Ann  Appleton  was  invalid,  and  that  Mrs.  Griffin  had, 
therefore,  no  standing  in  court  to  ask  for  the  appointment  of  a  trus- 
tee, the  estate  having  passed  to  those  entitled  in  remainder,  under  the 
will  of  John  Lawrence,  deceased,  as  if  Ann  Appleton  had  died  intes- 
tate. Their  contention  is — First,  that  the  appointment  violates  the 
rule  against  perpetuities,  and  is  therefore  wholly  void ;  and,  second, 
that,  while  the  donee  of  the  power  by  its  terms  could  make  a  direct, 
immediate,  and  absolute  appointment  of  the  fee,  she  was  not  author- 
ized to  declare  uses  and  trusts  as  contained  in  her  will. 

The  rule,  as  stated  in  Gray  on  Perpetuities,  is  as  follows :  "No 
interest,  subject  to  a  condition  precedent,  is  good  unless  the  condition 
must  be  fulfilled,  if  at  all,  within  twenty-one  years  after  some  life 
in  being,  at  the  creation  of  the  interest."  This  rule  is  in  force  in 
all  of  the  states  where  the  principles  of  the  common  law  prevail,  ex- 
cepting as  it  may  have  been  modified  by  statute.  In  Pennsylvania  it 
is  unaffected  by  statute,  only  as  it  is  modified  by  the  acts  of  18th 
April,  1853,  §  9,  and  26th  April,  1855,  §  12,  which  were  suggested  by 
the  Thellusen  Act,  and  operate  only  in  restraint  of  accumulations. 
It  seems  to  be  conceded,  and  rightly  too,  we  think,  that,  altliough  Ann 
Appleton  was  domiciled  at  her  death  in  New  Jersey,  the  validity  of  the 
appointment,  if  there  should  be  any  conflict,  is  to  be  determined  by 
the  laws  of  Pennsylvania,  which  is  the  lex  rei  sitae.  Any  inquiry 
as  to  the  law  of  New  Jersey  is  therefore  rendered  unnecessary.  The 
rule,  as  stated,  applies  to  interests  in  realty  or  in  personalty,  whether 
legal  or  equitable,  but  has  no  application  to  an  interest  which  is  vested, 
for  a  vested  interest  by  its  very  nature  cannot  be  subject  to  a  condi- 
tion precedent.  So,  also,  where  a  power  of  appointment  is  given, 
either  by  deed  or  will,  the  rule  applies  as  well  to  the  power  as  to 
the  appointment.  If  a  power  can  be  exercised  at  a  time  beyond  the 
Jiniits  of  the  rule  it  is  bad. 

As,  in  the  case  at  bar,  however,  the  power  must  be  exercised,  if  at 
all,  in  the  life-time  of  Ann  Appleton,  a  life  in  being  at  the  time  of  its 
creation,  it  cannot  be  impeached  upon  that  ground ;  and,  although  the 
power  to  .be  exercised  by  will  only  is  in  the  most  general  terms,  it  is 
not  rendered  bad  by  the  fact  that,  within  its  terms,  an  appointment 
might  possibly  have  been  made  which  would  be  too  remote.     Gray, 


358  THE   RULE    AGAINST   PERPETUITIES 

Perp.  §  510.  The  direct  and  specific  object  of  the  power,  according 
to  its  terms,  is  not  to  create  a  perpetuity;  and,  as  the  exercise  of  it 
is  necessarily  according  to  a  certain  discretion  or  latitude  of  choice 
in  the  donee,  the  security  which  the  law  provides  against  the  violation 
of  the  law  of  remoteness  is  in  the  failure  of  any  disposition  which 
results  from  the  abuse  of  that  discretion.     Lewis,  Perp.  487. 

The  question,  therefore,  is  upon  the  validity  of  the  appointment 
which  was  in  fact  made.  As  a  general  rule,  whether  an  appointment 
made  in  execution  of  a  power  is  too  remote  depends  upon  its  distance 
from  the  creation  of  the  power,  and  not  from  its  execution.  Gray, 
I'erp.  §  514;  Lewis,  Perp.  484.  The  exception  is  when  the  power  is 
general  to  the  donee  to  appoint,  to  whomsoever  he  may  choose,  either 
by  deed  or  will.  In  such  case  the  donee  has  absolute  control  as  if  he 
had  the  fee,  since  he  can  appoint  as  well  to  himself  as  to  any  other 
person.  He  is  practically  the  owner.  In  such  case  the  degree  of 
remoteness  is  measured  from  the  time  of  the  exercise  of  the  power, 
and  not  from  the  time  of  its  creation.  Bray  v.  Bree,  2  Clark  &  F. 
453;  Sugd.  Powers,  394,  683;  Lewis,  Perp.  483;  Gray,  Perp.  §§ 
477-524;  Mifflin's  Appeal,  121  Pa.  205,  15  Atl.  525,  1  L.  R.  A.  453, 
6  Am.  St.  Rep.  781. 

But  it  will  be  seen  that  the  power  given  to  Ann  Appleton  is  a  power 
to  be  exercised  by  will  only.  Her  authority  is  not  commensurate  with 
the  entire  ownership.  She  could  not  appoint  to  herself,  nor  to  any 
other  person,  to  take  in  her  life-time.  She  had  not  the  absolute  con- 
trol, and,  although  the  decisions  are  somewhat  conflicting,  and  the 
question  not  free  from  doubt,  the  better  opinion  seems  to  be  that  the 
power  must  be  regarded  as  special;  and  therefore  the  remoteness  of 
the  estate  created  by  the  appointment  must  be  measured  from  the  time 
of  the  creation  of  the  power,  which  was  at  the  death  of  John  Law- 
rence. See  In  re  Powell's  Trusts,  39  Law  J.  Ch.  188 ;  Gray,  Perp.  § 
526 ;  and  cases  there  cited.  No  estate  or  interest  can  be  limited  under 
a  particular  power,  which  would  have  been  too  remote  if  limited  in 
the  deed  or  will  creating  the  power.  Lewis,  Perp.  488.  But,  assuming 
that  the  remoteness  of  the  appointment  depends  upon  its  distance  from 
the  creation  of  the  power,  it  is  plain  that  the  several  bequests  and 
annuities  made  in  the  last  will  and  testament  of  Ann  Appleton,  de- 
ceased, were  to  persons  named  and  in  being,  for  distinct  and  separable 
sums  of  money,  by  way  of  bequest  or  annuity,  out  of  the  proceeds 
of  her  own  and  the  income  of  the  original  trust  estate. 

The  manifest  purpose  of  the  trust  was  to  preserve  the  estate  for 
the  legatees  and  annuitants  for  the  life  of  her  children  and  the  sur- 
vivor of  them.  At  the  death  of  the  last  child  her  surviving,  their  ob- 
ject would  be  fully  attained;  the  annuities,  whether  to  children,  grand- 
children, or  to  others,  were  then  to  terminate,  and  the  entire  trust- 
estate  then  remaining  was  to  be  conveyed  to  the  New  York  Baptist 
Union,  etc.,  in  fee,  to  be  applied  as  by  the  will  is  directed.     We  have 


THE   RULE   STATED  359 

then  a  devise  to  the  trustees,  in  trust  for  the  annuitants,  for  the  life 
of  the  children  of  the  donee,  and  the  survivor  of  them,  with  a  re- 
mainder over  in  fee  to, the  Baptist  Union.  Ann  Appleton,  as  the  donee 
of  the  power,  had  the  right  by  her  will  to  appoint  to  whom  she  chose. 
She  certainly  had  a  right  to  appoint  to  her  children  for  life,  or  to 
trustees  for  their  use  for  life,  whether  they  were  born  before  or  aftei 
the  decease  of  John  Lawrence;  and  that,  although  the  estate  in  re- 
mainder might  be  too  remote,  the  annuitants  would  take  at  her  de- 
cease. "Where,  under  a  power,  interests  are  given  by  way  of  par- 
ticular estate  and  remainder,  (including  analogous  gifts  of  personal 
estate,)  and  the  particular  estate  is  limited  to  a  valid  object  of  the 
power,  but  the  remainder  is  too  remote,  the  appointment  will  not  be 
wholly  void,  but  only  the  gift  in  remainder.  In  such  case,  the  inter- 
ests, in  respect  of  which  there  is  an  excess  of  the  power,  being  distinct 
and  separable  from  the  valid  portion  of  the  appointment,  there  is  no 
reason  for  involving  the  primary  limitation  in  the  remoteness  of  the 
remainder."  Lewis,  Perp.  496;  citing  Adams  v.  Adams,  Cowp.  651; 
'Bristow  V.  Warde,  2  Ves.  Jr.  336;  Routledge  v.  Dorril,  Id.  357; 
Brudenell  v.  Ehves,  1  East,  442,  7  Ves.  382;  Butcher  v.  Butcher, 
9  Ves.  382;  Gray,  Perp.  §§  232,  239,  242,  citing  Read  v.  Gooding, 
21  Beav.  478,  4  De  Gex,  M.  &  G.  510,  and  other  cases.  See,  also, 
Davenport  v.  Harris,  3  Grant  Gas.  168.  In  this  respect  we  think 
the  ruling  in  Smith's  Appeal,  88  Pa.  492,  was  wrong;  for,  although 
Ryan's  daughter,  Mrs.  Smith,  might  have  had  children  born  after 
his  decease,  her  children,  whether  born  before  or  after  Ryan's  death, 
would  have  taken  at  her  death,  and  the  life-estates  were  therefore 
good;  whereas,  it  was  held  that  her  appointment  was  wholly  bad. 
This  statement  of  the  law  would  seem  to  be  decisive  of  the  case 
at  bar,  for  the  proceeding  is  not  by  the  party  entitled  in  remainder 
for  a  conveyance,  but  by  one  of  the  annuitants  for  the  appointment 
of  a  trustee,  for  the  purposes  of  the  trust  subsisting  under  the  will 
of  Ann  Appleton,  for  the  benefit  of  the  annuitants,  during  the  life  of 
her  children.  But  the  estate  of  the  Baptist  Union  also  vested  at  the 
death  of  Ann  Appleton.  The  beneficiaries  under  her  will  are  described 
by  name ;  to  each  is  given  a  separate  and  distinct  sum  by  way  of  leg- 
acy or  annuity;  to  each  one  eo  nomine;  and,  as  we  have  said,  their 
rights  vested  at  their  mother's  death.  The  remainder  was  ready,  at 
any  time  after  the  death  of  Ann  Appleton,  to  come  into  the  posses- 
sion of  the  Baptist  Union  whenever  and  however  the  life-estate  might 
determine.  It  was  subject  to  no  condition  precedent,  save  the  deter- 
mination of  the  preceding  estate.  The  contingency  was  not  annexed 
to  the  gift,  or  to  the  person  entitled,  but  to  the  time  of  enjoyment 
merely ;  and,  according  to  all  the  cases,  the  remainder  must  be  treated, 
not  as  a  contingent,  but  as  a  vested,  estate.  If  this  be  so  the  rule 
against  remoteness  is  satisfied,  for  not  only  the  particular  estate,  but 
the  remainder   supported  by  it,   took   effect  within    lives  in  being  at 


3G0  THE   RULE   AGAINST   PERPETUITIES 

the  creation  of  the  power.  "The  particular  feature,"  says  Mr.  Lewis, 
in  his  treatise  on  Perpetuities,  "in  Hmitations  of  future  interests,  with 
which  the  rule  against  perpetuities  is  connected,  is  the  time  of  their 
vesting,  or,  in  other  words,  of  their  becoming  transmissible  to  the 
representative  of  the  grantee,  devisee,  or  legatee,  and  disposable  by 
him.  When  they  are  so  limited  as  necessarily  to  allow  this  quality, 
within  the  legal  period  of  remoteness,  they  are  free  from  objection 
in  reference  to  the  perpetuity  rule."  Upon  this  question  we  may  also 
refer  to  Mifflin's  Appeal,  121  Pa.  205,  15  Atl.  525,  1  L.  R.  A.  453, 
6  Am.  St.  Rep.  781.  "If  a  remainder  is  vested,  that  is,  if  it  is  ready 
to  take  eflfect  whenever  and  however  the  particular  estate  determines, 
it  is  immaterial  that  the  particular  estate  is  determinable  by  a  con- 
tingency which  may  fall  beyond  a  life  or  lives  in  being."  Gray,  Perp. 
§  209.  Perpetuities  are  grants  of  property  wherein  the  vesting  of  an 
estate  is  unlawfully  postponed.  Philadelphia  v.  Girard's  Heirs,  45  Pa. 
26,  84  Am.  Dec.  470;  Barclay  v.  Lewis,  67  Pa.  316.  The  main  ques- 
tion decided  in  Smith's  Appeal  is  therefore  not  involved  in  this  case. 
The  accuracy  of  that  decision  has  been  somewhat  doubted  by  the 
learned  judge  who  wrote  it,  (Coggins'  Appeal,  124  Pa.  10,  16  Atl.  579, 
10  Am.  St.  Rep.  565)  but  the  subject  can  only  be  further  considered 
when  a  proper  case  is  presented. 

Nor  do  we  think  the  appointment  is  invalid,  because  in  the  exer- 
cise of  the  power  the  donee,  without  special  direction  of  John  Law- 
rence, the  testator,  to  that  effect,  in  appointing  the  fee,  declared  cer- 
tain uses  and  trusts  for  life,  with  remainder  over.  The  power  con- 
ferred upon  Mrs.  Appleton  by  her  father's  will  was  "to  grant  and 
convey  the  real  estate  in  fee,"  "in  such  parts  or  shares"  as  she  by  her 
last  will  should  direct.  The  power  is  wholly  unrestricted.  The  entire 
discretion  is  committed  to  the  donee  of  the  power  to  grant  the  fee 
in  such  form  and  to  such  persons  as  she  chose.  In  the  exercise  of 
that  power  she  did  appoint  the  fee,  and  we  think  she  was  authorized, 
observing  the  rule  against  remoteness,  to  declare  such  uses  and  trusts 
for  life  as  would  best  carry  out  her  wishes  with  respect  to  the  ulti- 
mate disposal  of  the  property.  No  authorities  have  been  cited  to  any 
different  effect.  On  the  contrary,  appointments  in  trust,  even  under 
restricted  powers,  would  seem  to  have  been  sustained,  and,  as  illus- 
trations of  this,  we  have  been  referred  to  Alexander  v.  Alexander, 
2  Ves.  Sr.  642;  Trollopc  v.  Linton,  1  Sim.  &  S.  477;  Crompe  v.  Bar- 
row, 4  Ves.  681 ;  Willis  v.  Kymer,  7  Ch.  Div.  181 ;  2  Sugd.  Powers, 
273,  274. 

The  decree  of  the  orphans'  court  is  affirmed,  and  the  appeal  dis- 
missed at  the  cost  of  the  appellants. 


THE   RULE   STATED  361 


2.  Application  o^  the  RulB 


.      SEAVER  V.  FITZGERALD. 

(Supreme  Court  of  Massachusetts,  1886.     141  Mass.  401,  6  N.  E.  73.) 

This  was  a  real  action  in  which  the  demandant  claimed  title  to,  and 
sought  to  recover  possession  of,  a  parcel  of  land  in  Lawrence.  The 
plea  was  nul  disseizin.  Hearing  in  the  superior  court  before  Gardner, 
].,  who  found  the  following  facts :  The  demandant  claimed  title  to 
the  premises  by  descent,  as  next  of  kin  and  heir  at  law  of  Annie 
J.  Rafferty,  who  died  at  Lawrence  in  1879.  One  Hugh  Rafferty,  at 
the  time  of  his  death  in  1873,  was  seized  in  fee-simple  and  possessed 
of  said  premises,  so  described  in  the  writ  in  this  action.  Said  Hugh 
left  a  last  will  and  testament,  which  was  duly  proved  and  allowed  in 
the  probate  court  for  the  county  of  Essex.  At  the  time  of  said  Hugh 
RaflPerty's  death,  his  sole  heir  and  next  of  kin  was  his  daughter,  Annie 
J.  Rafferty,  named  in  said  will  as  cestui  que  trust.  Said  Annie  J.  died 
at  said  Lawrence  in  1879,  intestate,  unmarried,  and  without  issue. 
The  demandant  is  her  heir ;  the  €aid  Elizabeth  being  the  sister  of  said. 
Hugh  Rafferty,  who  was  the  father  of  said  Annie.  The  tenant,  Fitz- 
gerald, was  in  possession  of  said  premises  claiming  a  title  in  fee  there- 
to under  a  deed  from  the  Augustinian  Society,  named  in  said  will,  to 
whom  said  trustees  conveyed  the  same  after  the  death  of  Annie  J. 
Rafferty.  The  demandant  claimed  that  the  devise  to  the  Augustinian 
Society  was  void,  and  the  deed  of  the  trustees  to  it  therefore  passed  no 
title. 

Upon  the  foregoing  facts  the  court  ruled  that  the  demandant  could 
not  maintain  her  action  in  law,  and  reported  the  case  for  the  considera- 
tion of  the  full  court.  The  material  part  of  the  will  of  said  Hugh 
Rafferty  was  as  follows : 

"Item  12.  I  give,  bequeath,  and  devise  all  the  remainder  of  my  prop- 
erty, real,  personal,  and  mixed,  of  which  I  shall  die  seized  and  possess- 
ed, or  to  which  I  shall  be  entitled  to  at  the  time  of  my  decease,  to 
my  said  executors,  Patrick  Sweeney  and  Thomas  Conway,  to  hold  in 
trust,  to  use  so  much  of  the  income  thereof  as  shall  be  needed  to  give 
my  daughter,  Annie  J.  Rafferty,  a  good  and  suitable  support  so  long 
as  she  shall  live;  also,  if  she  shall  ever  have  a  child  or  children,  my  said 
executors  shall  support  them  in  a  proper  manner  from  said  income  or 
property  during  the  life  of  each  and  all.  The  balance  of  said  income 
and  the  property,  after  death  of  my  said  child  and  her  child  or  children, 
(if  any,)  shall  all  be  paid  over  by  my  executors  for  the  sole  use  and 
benefit  of  the  Augustinian  Society  of  Lawrence,  a  body  corporate,  duly 
established  by  the  laws  of  this  commonwealth  in  the  year  of  our  Lord 
eighteen  hundred  and  seventy,  to  said  corporation  forever." 


362  ,       THE    RULE   AGAINST   PERPETUITIES 

* 

C.  Allen,  J.  There  is  no  objection,  on  the  ground  of  remoteness, 
to  a  gift  to  unborn  children  for  life,  and  then  to  an  ascertained  person, 
provided  the  vesting  of  the  estate  in  the  latter  is  not  postponed  too 
long.  Loring  v.  Blake,  98  Mass.  253 ;  Evans  v.  Walker,  3  Ch.  Div. 
211;  In  re  Roberts,  19  Ch.  Div.  520;  Lewis,  Perp.  417-511. 

In  all  the  cases  cited  by  the  demandant's  counsel,  the  gift  over  was 
to  persons  who  might  not  be  ascertainable  with  certainty  within  the  al- 
lowed time.  But  the  present  case  is  not  of  that  class.  There  was  no 
contingency  or  uncertainty  as  to  who  should  finally  take.  The  estate 
or  interest  vested  in  the  Augustinian  Society,  a  body  corporate  abso- 
lutely and  at  once,  upon  the  testator's  death,  subject  to  the  preceding 
life-estates.  All  that  is  required  by  the  rules  against  perpetuities  is 
that  the  estate  or  interest  should  vest  within  the  prescribed  period.  The 
right  of  possession  may  be  postponed  longer.  Moreover,  the  devise 
was  to  take  full  effect,  with  right  of  possession,  upon  the  death  t)f  the 
testator's  daughter,  Annie,  if  she  should  leave  no  child.  In  point  of 
fact,  she  left  none.  Therefore,  in  this  alternative  contingency,  not  only 
the  estate,  but  the  right  of  possession,  would  certainly  vest  within  the 
permitted  period;  and  as  this" contingency  is  the  one  which  happened,- 
the  validity  of  the  devise  would  not  be  affected  by  the  consideration 
that  the  other  contingency  might  be  too  remote.  Jackson  v.  Phillips, 
14  Allen,  572,  and  cases  there  cited. 

On  both  grounds  the  entry  must  be,  judgment  for  the  tenant. 


3.  Effect  of  Violating  the  Rule 


See  Proprietors  of  Church  in  Brattle  Square  v.  Grant,  ante,  p.  212. 


II.  Estates  and  Interests  Subject  to  the  Rule  ' 


See  Proprietors  of  Church  in  Brattle  Square  v.  Grant,  ante,  p.  212; 
also  Appeal  of  Appleton,  ante,  p.  356. 


III.  Exceptions  to  the  Rule 


See  Proprietors  of  Church'  in  Brattle  Square  v.  Grant,  ante,  p.  212. 

2  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  162. 
a  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  163. 


EASEMENTS,  PROFITS  A  PRENDRE,  AND  RENTS  363 

(B)  Rights  in  the  Land  of  Others 
EASEMENTS,   PROFITS  A   PRENDRE,  AND   RENTS 

I.  Easement  Defined^ 
1.  Distinguished  from  License 


YEAGER  V.  TUNING. 

(Supreme  Court  of  Ohio,  1908.     79  Ohio  St.  121,  86  N.  E.  667,  19  L.  R.  A. 

[N.  S.]  700,  128  Am.  St.  Rep.  679.) 

Error  to  Circuit  Court,  Gallia  county. 

Action  by  Garret  Yeager  and  others  against  John  P.  Tuning  and 
others.  A  demurrer  to  the  petition  was  sustained  in  the  circuit  court, 
and  plaintiffs  bring  error.    Affirmed. 

It  is  averred  in  the  petition  that  the  plaintiffs  and  the  defendants 
mutually  agreed  orally  to  construct  a  telephone  line  over  and  across 
their  respective  lands  and  to  their  respective  residences  thereon  to 
enable  them  to  have  telephonic  communication  with  each  other  and 
with  persons  on  other  lines  with  which  such  line  might  be  connected ; 
that  each  agreed  at  his  own  expense  to  erect  and  maintain  a  certain 
number  of  poles,  and  that  the  plaintiffs  and  defendants  agreed  to 
contribute  equally  money  to  purchase  and  string  the  wires,  and  to  con- 
tribute equally  sufficient  money  to  repair  and  maintain  the  line ;  that 
the  line  was  constructed  as  agreed ;  that  it  was  of  a  permanent  nature 
and  of  the  value  of  $250;  that  each  of  the  parties  expended  about  $15 
additional  for  telephone  boxes  and  other  appliances,  and  that  the  line 
was  in  use  for  about  three  years,  and  until  shortly  before  the  filing 
of  the  petition  when  certain  of  the  defendants  cut  the  wires  and  cut 
down  certain  of  the  poles  and  rendered  the  line  in  places  useless,  and 
they  pray  for  a  mandatory  order  requiring  the  replacing  of  the  poles 
and  the  restoring  of  the  line,  and  for  an  injunction  against  the  de- 
struction or  interference  with  the  line  in  the  future.  The  case  went 
to  the  circuit  court  on  appeal,  where  a  demurrer  was  sustained  and 
the  petition  dismissed. 

Summers,  J.  (after  stating  the  facts  as  above).  If  the  plaintiffs 
are  entitled  to  a  specific  performance  of  the  agreement,  then  they  have 
an  easement  created  by  parol  in  the  lands  of  the  defendants.  An  ease- 
ment is  a  right  without  profit,  created  by  grant  or  prescription,  which 
the  owner  of  one  estate  may  exercise  in  or  over  the  estate  of  another 
for  the  benefit  of  the  former.  A  license  is  a  personal,  revocable,  and 
nonassignable  privilege,  conferred  either  by  writing  or  parol,  to  do 

1  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  166-179. 


3C4         EASEMENTS,  PROFITS  A.  PRENDRE,  AND  RENTS 

one  or  more  acts  upon  land  without  possessing  any  interest  therein. 
Greenwood  Lake  &  P.  J.  Railroad  Co.  v.  N.  Y.  &  G.  L.  Railroad  Co., 
134  N.  Y.  435,  31  N.  E.  874. 

Section  4198,  Rev.  St.,  provides  that:  "No  lease,  estate  or  interest, 
either  of  freehold  or  term  of  years,  or  any  uncertain  interest  of,  in,  or 
out  of  lands,  tenements,  or  hereditaments,  shall  be  assigned,  or  grant- 
ed, except  by  deed,  or  note  in  writing,  signed  by  the  party  so  assign- 
ing or  granting  the  same,  or  his  agent  thereunto  lawfully  authorized, 
by  writing,  or  by  act  and  operation  of  law."  This  statute  would  seem 
to  settle  the  question  of  the  right  to  a  decree  for  specific  performance 
against  the  plaintiffs,  but  it  is  contended  that  it  is  the  well-settled  law 
of  this  state  that  such  an  agreement  is  a  parol  license,  and  that  such 
license,  when  executed  is  irrevocable. 

Mr.  Freeman  in  a  note  to  Lawrence  v.  Springer,  49  N.  J.  Eq.  289, 
24  Atl.  933,  31  Am.  St.  Rep.  702-715,  says:  "At  common  law  a  parol 
license  to  be  exercised  upon  the  land  of  another  creates  an  interest  in 
the  land,  is  within  the  statute  of  frauds,  and  may  be  revoked  by  the 
licensor  at  any  time,  no  matter  whether  or  not  the  licensee  has  exer- 
cised acts  under  the  license,  or  expended  money  in  reliance  thereon. 
In  many  of  the  states  this  rule  prevails,  while  in  others  the  licensor 
is  deemed  to  be  equitably  estopped  from  revoking  the  license,  after 
allowing  the  licensee  to  perform  acts  thereunder,  or  to  make  expendi- 
tures in  reliance  thereon.  These  two  lines  of  cases  cannot  be  recon- 
ciled ;  for  one  of  them  holds  that  an  interest  in  land  cannot  be  created 
by  force  of  a  mere  parol  license,  whether  executed  or  not,  while  the 
other  declares  that  where  the  licensee  has  gone  to  expense,  relying 
upon  the  license,  the  licensor  may  be  estopped  from  revoking  it,  and 
thus  an  easement  may  be  created.  The  former  line  of  cases,  it  seems 
to  us,  is  founded  upon  the  better  reason.  They  decide  that  a  parol  li- 
cense to  do  an  act  on  the  land  of  the  licensor,  while  it  justifies  anything 
done  by  the  licensee  before  revocation,  is  revocable,  at  the  option  of  the 
licensor,  and  this  although  the  intention  was  to  confer  a  continuing 
right,  and  money  has  been  expended  by  the  licensee  upon  the  faith  of 
the  license.  Such  license  cannot  be  changed  into  an  equitable  right  on 
the  ground  of  equitable  estoppel."  To  the  same  eft'ect  is  Browne  on 
the  Statute  of  Frauds,  §  31 ;  Jones  on  Easements,  §  84;  Bigelow  on  Es- 
toppel (5th  Ed.)  666. 

In  Lawrence  v.  Springer,  49  N.  J.  Eq.  289,  24  Atl.  933,  31  Am.  St. 
Rep.  702,  Beasley,  C.  J.,  says:  "It  has  not  been,  and  it  cannot  be, 
denied  that  such  a  grant  as  the  one  in  question  cannot  be  enforced  in 
a  court  of  law.  Such  easements,  being  incorporeal,  lie  in  grant,  and 
their  creation  requires  an  instrument  under  seal.  Nor  is  it  questioned, 
nor  questionable,  that  a  parol  imposition  of  a  servitude  of  this  kind 
upon  land  is  in  flat  contradiction  of  the  statute  of  frauds.  It  is  true, 
indeed,  that  in  one  class  of  cases,  as  is  well  known,  courts  of  conscience 
have  felt  dispensed  from  putting  in  force  the  provisions  of  that  act. 
This  has  been  the  course  pursued  where  a  parol  agreement  for  the 


EASEMENT   DEFINED  365 

purchase  of  lands,  or  of  some  interest  in  them,  has  been  performed 
to  the  extent  of  possession  having  been  taken  in  part  execution  of  such 
contract.  But,  while  this  is  the  undeniable  rule  in  equity,  it  should  be 
ever  borne  in  mind  that  its  introduction  has  been  regretted  by  the 
wisest  judges.  'The  statute,'  says  Lord  Redesdale,  'was  made  for  the 
purpose  of  preventing  perjuries  and  frauds,  and  nothing  can  be  more 
manifest  to  any  person  who  has  been  in  the  habit  of  practicing  in 
courts  of  equity  than  that  the  relaxation  of  that  statute  has  been  a 
ground  of  much  perjury  and  much  fraud.  If  the  statute  had  been 
vigorously  observed,  the  result  would  probably  have  been  that  few  in- 
stances of  parol  agreements  would  have  occurred.  Agreements  from 
the  necessity  of  the  case  would  have  been  reduced  to  writing.  Where- 
as it  is  manifest  that  the  decisions  on  the  subject  have  opened  a  new 
door  to  fraud.'  And  these  strictures  are  pointed  with  the  emphatic 
declaration  that  'it  is  therefore  absolutely  necessary  for  courts  of  equi- 
ty to  make  a  stand,  and  not  carry  the  decisions  further.'  Lindsay  v. 
Lynch,  2  Schoales  &  L.  4.  And  in  the  same  vein,  Judge  Story  (2 
Story's  Eq.  Jur.  §  766)  says  that  'considerations  of  this  sort  have  led 
eminent  judges  to  declare  that  they  would  not  carry  the  exceptions 
of  cases  from  the  statute  of  frauds  further  than  they  were  compelled 
to  do  by  former  decisions.'  To  the  same  purpose  are  the  criticisms 
of  Chancellor  Kent  in  Phillips  v.  Thompson,  1  Johns.  Ch.  (N.  Y.)  149, 
and  of  Chancellor  Zabriskie  in  Cooper  v.  Carlisle,  17  N.  J.  Eq.  529." 

Pomeroy,  in  his  work  on  Specific  Performance  of  Contracts,  re- 
ferring to  the  doctrine  of  the  irrevocability  of  a  parol  license  when 
executed,  says  that  it  is  opposed  to  the  common-law  doctrine  concern- 
ing licenses  as  it  prevails  in  England  and  in  most  of  the  American 
states.  In  Rodefer  v.  Railroad,  72  Ohio  St.  272,  74  N.  E.  183,  70 
L.  R.  A.  844,  the  opinion  of  Andrews,  J.,  in  Crosdale  v.  Lanigan,  129 
N.  Y.  604,  29  N.  E.  824,  26  Am.  St.  Rep.  551,  was  quoted  from  at 
length  with  approval,  and  it  is  unnecessary  to  repeat  here  what  was 
said  there.  In  that  opinion  he  says  that  it  is  plainly  the  rule  of  the 
statute,  as  well  as  the  rule  required  by  public  policy,  that  such  a  license, 
though  executed,  is  revocable.  See,  also,  Hicks  v.  Swift  Creek  Mill 
Company,  133  Ala.  411,  31  South.  947,  57  L.  R.  A.  720,  91  Am.  St. 
Rep.  38;  Pitzman  v.  Boyce,  111  Mo.  387,  19  S.  W.  1104,  33  Am.  St. 
Rep.  536;  Thoemke  v.  Fiedler  and  Another,  91  Wis.  386,  64  N.  W. 
1030;  Stewart  v.  Stevens,  10  Colo.  440,  15  Pac.  786;  St.  Louis  Na- 
tional Stock  Yards  v.  Wiggins  Ferry  Company,  112  111.  384,  54  Am. 
Rep.  243.  The  cases  are  too  numerous  to  cite,  but  may  be  readily 
found  by  reference  to  the  reports  and  textbooks  already  cited. 

The  early  cases  were  grounded  on  some  early  English  cases  which 
were  overruled  in  the  leading  case  of  Wood  v.  Leadbitter,  13  Meeson 
&  W.  838.  The  cases  of  Wilson  et  al.  v.  Chalfant,  15  Ohio,  248,  45 
Am.  Dec.  574,  and  Hornback  v.  Cincinnati  &  Zanesville  Railroad  Com- 
pany, 20  Ohio  St.  81,  are  cited  as  supporting  the  doctrine  of  the  ir- 
revocability of  such  a  license.     The  former  seems  to  have  been  based. 


366         EASEMENTS,  PROFITS  A  PRENDRE,  AND  RENTS 

Upon  precedents  that  were  in  accord  with  the  early  English  decisions, 
which,  as  we  have  seen,  have  been  overruled.  The  later  case  is  not 
authority  for  the  doctrine,  but  is  a  case  of  a  parol  agreement  for  the 
purchase  of  an  interest  in  lands  which  has  been  performed  to  the  ex- 
tent of  possession  having  been  taken  in  part  execution  of  the  contract. 
The  later  case,  decided  by  the  Supreme  Court  Commission  (Wilkins 
V.  Irvine,  33  Ohio  St.  138),  is  not  in  accord  with  the  earlier  doctrine, 
but  is  in  accord  with  the  modern  doctrine,  and  it  is  there  held  that : 
'^A  written  license,  without  seal  and  unacknowledged  to  enter  upon 
and  imbed  water  pipes  in  the  land  of  another,  with  privilege  to  enter 
and  repair  them,  creates  no  interest  in,  nor  incumbrance  upon,  the  land 
such  as  will  disable  the  owner  thereof  from  making  a  good  and  suffi- 
cient deed  conveying  a  good  title  thereto."  It  may  be  added  that  in 
that  case  the  written  license  had  been  executed,  and  in  the  opinion  it 
is  said  (page  144) :  "It  gave  the  Cleveland  Rolling  »Mill  Company  no 
dominion  over  the  land,  nor  did  it  create,  in  its  favor,  an  easement 
in  the  land.  If  its  terms  had  been  violated  by  Brooks  or  his  grantees, 
the  jurisdiction  of  a  court  of  equity  could  not  have  been  successfully 
invoked  to  enforce  a  specific  performance.  The  remedy,  if  any  it  had, 
would  have  been  an  action  for  damages." 

Judgment  affirmed. - 

Price,  C.  J.,  and  Shauck,  CrEw,  and  SpEar,  JJ.,  concur. 

Davis,  J.  (dissenting).  The  contrary  rule  has  been  a  rule  of  prop- 
erty in  this  state  for  more  than  60  years.  Wilson  v.  Chalfant,  15  Ohio, 
248,  45  Am.  Dec.  574.  It  is  in  the  strictest  sense  stare  decisis, 
and  is  no  longer  an  open  question  for  the  courts.  If  there  is  any  de- 
mand for  a  change  of  the  law,  the  Legislature  alone  is  competent  to 
decide  whether  a  change  so  vital  to  property  rights  which  have  been 
acquired  under  the  existing  rule  should  be  made. 


SHAW  v.  PROFFITT.' 

(Supreme  Court  of  Oregon,  1910.     57  Or.  192,  110  Pac.  1092, 
Ann.  Gas.  1913A,  63.) 

In  the  former  case,  reported  in  109  Pac.  584,  defendant  appealed 
from  a  decree  declaring  plaintiff  to  be  the  owner  of  a  certain  canal 
or  irrigating  ditch  built  by  him  across  defendant's  lands  under  an  ir-. 
revocable  license,  the  right  to  the  uninterrupted  use  and  enjoyment  of 
the  same  for  the  purpose  of  conveying  water  to  his  lands  for  irriga- 
tion, and  perpetually  enjoining  defendant  from  interfering  with  such 
ditches.  Plaintiff  alleged  that  he  obtained  from  Proffitt  and  his  pred- 
ecessors in  interest  the  right,  consent,  permission,  and  license  to  ex- 

2  For  further  deflnition  of  an  easement,  see  Canfield  v.  Ford,  reported  here- 
in, ante,  p.  5. 

3  The  statement  of  facts  is  rewritten. 


EASEMENT   DEFINED  367 

cavate,  use,  and  maintain  a  main  ditch,  called  his  "upper  ditch,"  which, 
as  originally  constructed,  was  4i'2  feet  in  width  at  the  top  and  from 
11/^  to  3  feet  in  depth  and  to  use  a  certain  canyon  or  gulch,  leading 
from  his  main  ditch  on  the  west  side  of  defendant's  land  easterly  to  a 
lateral  or  part  of  the  "lower  ditch,"  first  excavated  by  him,  and  leading 
to  the  S.  W.  14  of  section  33,  an  insolated  portion  of  his  lands.  The 
decree  was  in  plaintiff's  favor  as  to  the  upper  ditch,  but  against  him  as 
to  the  right  to  use  the  said  canyon  or  gulch.  This  decree  was  affirmed. 
The  present  case  arises  upon  a  petition  for  rehearing.     Denied. 

Eakin,  J.*  *  *  *  a  distinction  is  made  by  counsel  between 
a  license  and  an  easement.  The  latter,  he  contends,  can  only  be  cre- 
ated by  solemn  writing.  The  rule  is  that  an  easement  can  only  be 
created  by  writing  under  seal,  but  there  are  exceptions  well  recog- 
nized in  equity.  It  may  be  created  by  adverse  user,  by  estoppel,  or  part 
performance  of  a  parol  agreement.  An  express  oral  license  may  be 
revocable  at  any  time  before  it  is  executed,  for  it  creates  no  interest 
in  the  land ;  but  if  executed — that  is,  if  expenditures  be  made  in  per- 
manent improvements  in  reliance  thereon,  inuring  to  the  benefit  of  the 
licensor — then  it  becomes  irrevocable,  and  if  it  relates  to  the  use  or 
occupation  of  real  estate  it  becomes  an  easement.  This  is  recognized 
in  many  cases.  In  Curtis  v.  La  Grande  Water  Co.,  supra  [20  Or.  34, 
23  Pac.  808,  25  Pac.  378,  10  L.  R.  A.  484] ,  Mr.  Justice  Lord,  quotes 
with  approval  from  Jackson  v.  Railroad  Co.,  4  Del.  Ch.  180,  which,  in 
laying  stress  upon  the  necessity  for  a  clear  case  to  make  a  license  ir- 
revocable, says  that  the  effect  will  be  to  convert  what  was  originally 
a  bare  privilege  into  an  easement  in  the  licensor's  land,  perpetually 
binding  it  and  transmissible  from  the  licensee.  The  author  of  the 
note  at  49  L.  R.  A.  497,  says :  "The  moment  it  [the  license]  ceases  to 
be  so  revocable  it  creates  an  interest  in  the  land,  and  rises  to  the  dig- 
nity of  an  estate  or  an  easement."  See,  also.  Pope  v.  Henry,  24  Vt.- 
560;  Snowden  v.  Wilas,  19  Ind.  10,  81  Am.  Dec.  370;  Metcalf  v. 
Hart,  3  Wyo.  513,  546,  27  Pac.  900,  31  Pac.  407,  31  Am.  St.  Rep.  122. 

The  licensee's  right  to  relief  is  on  the  ground  of  fraud,  against 
which  equity  will  always  relieve  by  estoppel  on  account  of  the  fraud 
or  by  specific  performance  of  an  oral  agreement  partly  performed 
to  prevent  fraud,  whether  the  fraud  be  actual  or  constructive,  inten- 
tional or  nonintentional.  Metcalf  v.  Hart,  3  Wyo.  513,  547,  27  Pac. 
900,  31  Pac.  407,  31  Am.  St.  Rep.  122.  See  note  to  Hall  v.  Chaffee, 
13  Vt.  *157,  by  Mr.  Justice  Redfield.  In  Metcalf  v.  Hart,  supra,  it 
is  said:  "Cases  may  arise  and  have  arisen  where  a  license  to  occupy 
land  has  been  intended  and  understood  as  a  mere  personal  favor  to  the 
licensee  to  give  him  a  place  to  live,  or  to  occupy  for  some  other  bene- 
ficial purpose  not  transmissible,  but  revocable  at  will.  Then  expendi- 
tures would  naturally  be  made  accordingly.  In  other  cases  the  grant- 
ing of  the  license  has  been  in  terms  an  assurance  of  permanent  posses- 
sion.    It  is  evident  that  the  same  rule  cannot  apply  to  both  classes  of 

*  Part  of  the  opinion  is  omitted. 


3G8  EASEMENTS,    PROFITS   1   PRENDRE,    AHD    RENTS 

cases.  The  revocation  of  the  Hcense,  even  after  expenditures  made  in 
consequence  of  it,  in  the  one  case  is  a  right,  in  the  other  a  fraud.  No 
general  rule  can  be  made  as  to  the  revocability  of  such  licenses  after 
such  expenditures.  Each  case  stands  upon  its  own  circumstances. 
When  we  have  traveled  through  the  mass  of  decisions,  cloudy  and  con- 
flicting at  times,  and  have  arrived  at  the  principle  that  equity  will  re- 
lieve where  there  is  fraud,  actual  or  constructive,  we  have  arrived  at 
principle  in  regard  to  which  there  is  no  conflict.  And  courts  of  equity 
:•::  *  *  gj.g  ycry  gcncrally  agreed  that  the  revocation  of  a  parol 
license  to  permanently  occupy  and  improve  realty  after  any  consider- 
able expense  has  been  incurred  on  the  faith  of  such  license,  under  cir- 
cumstances such  that  the  parties  cannot  be  placed  in  statu  quo,  is 
either  actual  or  constructive  fraud."  Much  of  this  language  is  quoted 
evidently  with  approval  as  a  conclusion  to  the  note  in  7  Ann.  Cas.  717. 
See,  also.  Mason  v.  Hill,  27  E.  C.  L.  15,  Liggins  v.  Inge,  20  E.  C.  L. 
304,  and  Lowe  v.  Adams,  2  Ch.  (Eng.)  598,  in  which  a  doubt  is  ex- 
pressed as  to  whether  Wood  v.  Leadbitter,  13  Meeson  &  Welsby's  Rep. 
538,  which  seems  to  hold  to  the  contrary  and  is  frequently  quoted  as 
expressing  the  rule  in  England,  is  good  law. 

The  license  in  this  case,  as  gathered  from  the  letter  of  Failing,  which 
is :  "I  have  just  *  *  *  found  your  letter  of  the  19th  inst.,  asking 
for  right  of  way  through  my  land  in  Powder  River  Valley.  Would 
say  go  ahead.  The  more  ditches  you  build,  the  better  it  will  suit  me" 
— is  express  authority  to  construct  the  ditch,  and,  in  view  of  all  the 
circumstances,  did  not  contemplate  a  temporary  affair,  but  a  permanent 
right  of  way.  It  is  indefinite  as  to  the  location  and  extent  of  the  ditch ; 
but,  when  they  were  located  and  constructed,  both  became  definite. 
The  whole  ditch  was  constructed  at  great  expense,  viz.,  $6,000  or  $7,- 
000,  to  convey  water  for  irrigation  upon  plaintiff's  land,  and  the  part 
upon  defendants'  lands  is  only  a  small  part  thereof ;  the  ditch  being 
about  16  miles  long.  A  permanent  way  appears  to  have  been  the  in- 
tention of  the  parties,  and  such  intention  must  control.  Brown  v.  Hon- 
eyfield,  139  Iowa,  414,  116  N.  W.  731;  Pifer  v.  Brown,  43  W.  Va. 
412,  27  S.  E.  399,  49  L.  R.  A.  497,  509. 

Again,  it  is  urged  that,  even  though  the  license  is  irrevocable  as  to 
the  licensor,  it  is  not  so  as  to  his  grantee.  But  the  authorities  that 
hold  the  license  irrevocable  also  hold  that  it  is  binding  upon  the  gran- 
tee of  the  licensor  who  took  with  notice.  3  Pom.  Eq.  Jur.  §  1295 ; 
Bush  V.  Sullivan,  3  G.  Greene  (Iowa)  344,  54  Am.  Dec.  506;  Beatty 
v.  Gregory,  17  Iowa,  109,  85  Am.  Dec.  546;  Snowden  v.  Wilas.  19 
Ind.  10,  81  Am.  Dec.  370;  Simons  v.  Morehouse  et  al.,  88  Ind.  391; 
^letcalf  V.  Hart,  3  Wyo.  513,  548,  27  Pac.  900,  31  Pac.  407,  31  Am. 
St.  Rep.  122.  Counsel  for  defendant,  in  his  brief,  concedes  this,  say- 
ing: "We  have  no  doubt  that,  under  the  liberal  rule  established  by 
these  cases,  the  promise  of  Failing  would  be  enforced  by  almost  any 
court  of  equity  against  Failing  and  also  against  any  successor  to  Fail- 


EASEMENT   DEFINED  369 

ing  who  took  with  either  actual  or  constructive  notice  of  the  burden 
existing  on  the  estate  in  favor  of  Shaw."  And  as  to  notice  Pom- 
eroy  says :  "If  a  purchaser,  or  incumbrancer,  dealing  concerning 
property  of  which  the  record  title  appears  to  be  complete  and  perfect, 
has  information  of  extraneous  facts  or  matters  in  pais  sufficient  to  put 
him  on  inquiry  *  *  *  respecting  some  outstanding  interest,  claim, 
or  right,  which  is  not  the  subject  of  record,  and  he  omits  to  make  in- 
quiry, he  will  be  charged  with  constructive  notice  of  all  the  facts 
which  he  might  have  learned  by  means  of  a  due  and  reasonable  in- 
quiry." 2  Pomeroy,  Eq.  §  613.  See,  also,  Petrain  v.  Kiernan,  23  Or. 
455,  457,  32  Pac.  158. 

This  principle  is  applied  in  case  of  a  water  ditch  in  McDougal  v. 
Lame,  39  Or.  212,  214,  64  Pac.  864.  In  German  Savings  &  Loan  So- 
ciety v.  Gordon,  54  Or.  147,  156,  102  Pac.  736,  739  (26  L.  R.  A.  [N. 
S.]  331),  Mr.  Chief  Justice  Moore,  in  discussing  the  same  principle, 
says :  "We  are  unable  to  discover  any  valid  reason  for  a  distinction 
in  the  rules  of  law  applicable  to  servitudes  depending  upon  whether 
they  are  continuous  or  discontinuous,  except  in  the  matter  of  the  great- 
er conspicuity  which  the  former  usually  affords.  An  artificial  ditch  in 
which  water  regularly  flows  must  necessarily  be  a  constant  remind- 
er to  all  beholders  of  the  changed  condition  of  the  surface  of  the 
earth,  whereby  the  dominant  tenement  is  drained  or  irrigated.  *  *  * 
A  discontinuous  quasi  easement,  when  evidenced  in  a  similar  substan- 
tial manner,  ought  to  pass  by  implied  grant  as  an  appurtenant  to  the 
dominant  tenement,  when  the  latter  is  severed  by  a  conveyance  there- 
of." And  in  23  A.  &  E.  E.  499,  it  is  said:  "It  is  generally  held  that 
the  possession  of  itself  operates  as  constructive  notice,  and  consequent- 
ly that  it  is  immaterial  that  the  purchaser  was  actually  ignorant  that 
the  land  was  adversely  held,  especially  where  he  could  have  easily  ac- 
quired knowledge  of  the  fact,  but  neglected  to  visit  the  premises." 

Defendant  testified  that  when  he  and  Russell  purchased  the  land 
there  was  a  ditch  coming  onto  the  land  at  the  south  and  across  the 
land,  and  onto  Shaw's  place  on  the  north ;  and  Mr.  Russell  testifies : 
"When  we  bought  this  land,  it  was  our  understanding  through  Mr. 
Williams  (who  negotiated  the  purchase  for  Russell  and  Profitt)  that 
there  was  no  writing  granted  by  Mr.  Failing,  and  he  was  selling  it  to 
us.  He  said  Mr.  Shaw  had  no  legal  right  through  that  place" — show- 
ing clearly  that,  at  the  time  of  the  purchase,  they  knew  of  Shaw's 
claim  and  had  talked  it  over.  This  was  sufficient  to  put  defendant  upon 
inquiry,  which  constitutes  notice,  and,  taken  in  connection  with  their 
recognition  of  the  ditch  thereafter,  tends  strongly  to  establish  that  the 
defendant  was  chargeable  with  knowledge  of  Shaw's  rights.  Carter 
V.  City  of  Portland,  4  Or.  339.  They  thereafter  recognized  Shaw's 
rights  in  permitting  him  to  complete  the  upper  ditch,  regarding  which 
Russell  testified:  "As  I  understood  he  would  vacate  the  lower  ditch, 
and  I  had  talked  with  Mr.  Chenault  about  getting  water  and  putting 
Bubd.Cas.Real  Peop. — 24 


370         EASEMENTS,  PROFITS  A  PRENDRE,  AND  RENTS 

water  down  there-,  and  of  course  we  spoke  of  those  ditches,  that  we 
could  use  them  for  laterals  ourselves." 

Defendant  further  contends  that  plaintiff  cannot  rely  upon  an  es- 
toppel, because  none  is  pleaded.  A  cursory  examination  of  the  plead- 
ings will  show  that  no  occasion  has  arisen  requiring  plaintiff  to  plead 
it.  The  complaint  alleges  the  license,  and  the  facts  necessary  to  con- 
stitute it  an  irrevocable  license.  The  answer  in  relation  thereto  con- 
tains only  admissions  and  denials ;  and,  there  being  no  affirmative  al- 
legation, he  is  asserting  nothing  that  he  ought  not  to  be  heard  to  al- 
lege. If  by  the  answer  he  had  raised  the  question  of  the  statute  of 
frauds,  or  that  the  license  was  in  parol,  the  estoppel  might  have  been 
raised  by  demurrer,  as  the  facts  are  set  out  in  the  complaint.  This 
was  so  held  in  Oregonian  Ry.  Co.  v.  Oregon  R.  &  N.  Co.  (C.  C.) 
22  Fed.  245,  249,  10  Sawy.  464,  471,  where  it  is  said  that,  "if  this 
fact  did  not  already  appear  in  the  complaint,  the  plaintiff  could  not 
have  the  benefit  of  the  estoppel,  unless  he  set  it  up  in  a  replication  ; 
and  that  is  the  way  in  which  the  point  is  generally  made  in  the  plead- 
ings. But  in  this  case  the  matter  which  operates  as  an  estoppel — the 
contract  of  leasing — is  set  forth  in  the  complaint.  In  such  case  the  de- 
fendant [plaintiff]  may  claim  the  benefit  of  the  estoppel  by  demurrer 
to  the  plea,  which  contains  the  defense,  of  a  want  of  corporate  exist- 
ence or  power."  There  are  many  authorities  to  this  effect.  See 
Adams  v.  Patrick,  30  Vt.  516,  and  8  PI.  &  Pr.  9,  and  cases  there  cited. 

The  allegations  of  the  complaint  disclose  an  irrevocable  license,  and 
proof  thereof  establishes  plaintiff's  case.  If  the  question  of  estoppel 
arose  upon  the  trial,  then  plaintiff  could  establish  it  by  the  evidence ; 
but  it  seems  to  have  been  raised  in  this  court  for  the  first  time. 

Counsel  also  contend  that  Failing's  license  to  Shaw  to  construct  the 
ditch  cannot  affect  or  bind  the  land  then  owned  by  his  wife  and  daugh- 
ter, and  relies  upon  Houston  v.  Zahm,  44  Or.  610,  76  Pac.  641.  65  L. 
R.  A.  799,  as  conclusive  upon  that  question.  But  that  case  is  readily 
distinguishable  from  the  one  before  us.  In  the  Zahm  Case  the  con- 
tract contemplated  that  the  University  would  purchase  certain  land  and 
should  thereafter  open  and  maintain  a  public  street  across  the  same. 
This  is  a  provision  for  an  easement  upon  the  land  of  the  University, 
when  acquired,  to  be  constructed  and  maintained  at  the  expense  of  the 
owner.  No  expense  or  act  by  the  grantee  is  involved.  Second,  there 
was  no  dominant  estate.  Only  an  easement  in  gross  was  contemplated. 
Third,  the  easement  did  not  create  a  covenant  running  with  the  land ; 
that  is,  it  was  an  agreement  concerning  land  but  not  an  estate  in  the 
land. 

In  the  present  case  Failing  was  acting  as  owner,  and  personally  au- 
thorized Shaw,  who  supposed  him  to  be  the  owner,  to  construct  the 
ditch  on  the  Failing  land,  not  an  easement  in  gross,  but  an  irrigation 
ditch  appurtenant  to  his  land.  This  was  partly  executed  by  Shaw  in 
good  faith  at  great  expense,  and  thereafter,  while  recognizing  Shaw's 
right,  Failing  acquired  the  title,  and  equity  will  interpose  an  estoppel 


EASEMENT   DEFINED  371 

as  though  he  held  the  title  at  the  time  the  license  was  granted,  in 
which  case  the  after-acquired  title  will  inure  to  the  benefit  of  the  Ht 
censee.  11  A.  &  E.  Ency.  403.  In  the  Zahm  Case  the  street  was  to 
be  erected  at  the  owner's  expense,  on  land  thereafter  to  be  acquired  by 
it,  which  was  not  done,  and  estoppel  cannot  be  invoked.  In  26  A.  &  E. 
E.  114,  it  is  said  it  will  not  defeat  an  action  for  specific  performance 
by  a  vendor  that  he  did  not  have  title  to  the  property  in  question  at 
the  time  the  contract  was  made,  provided  he  will  be  able  to  convey 
at  the  time  of  the  rendition  of  the  decree.  To  the  same  effect  is  Wa- 
terman on  Spec.  Perf.  §  409.  And  the  converse  of  that  statement  is 
elementary.  If  the  vendor  is  able  to  perform  at  the  time  of  the  suit, 
he  will  be  required  to  do  so  at  the  suit  of  the  vendee,  even  though  he 
had  no  title  at  the  time  of  making  the  agreement.  The  same  principle 
will  apply  in  favor  of  the  licensee  in  a  suit  to  enjoin  a  revocation  of 
an  executed  license.  Washburn  on  Easements  &  Servitudes  (2d  Ed.) 
says :  "But  the  ordinary  doctrine  of  estoppel  by  deed  applies  in  case 
of  a  grant  of  an  easement,  so  that,  if  a  person  without  title  profess  to 
convey  an  estate,  or  to  grant  an  easement,  his  conveyance  operates 
by  way  of  estoppel,  if  at  a  subsequent  period  he  acquires  the  fee,  and 
the  subsequently  acquired  estate  is  bound  thereby,  or,  as  it  is  termed, 
the  newly  acquired  estate  feeds  the  estoppel." 

The  petition  is  denied."* 

King,  J.,  dissents. 

8  There  are  many  cases  holding,  in  accord  with  the  foregoing,  that  wliere 
a  licensee  has  incurred  expense  by  making  valuable  improvements,  equity 
will  not  allow  the  license  to  be  revoked,  but  will  regard  the  license  as  an  ease- 
ment. See,  for  example,  Johnson  v.  Lewis,  47  Ark.  66,  14  S.  W.  466  (18S5)  ; 
Smith  V.  Green,  109  Cal.  228,  41  Pac.  1022  (1S95)  ;  Gyra  v.  Windier,  40  Colo. 
366,  91  Pac.  36,  13  Ann.  Gas.  841  (1907)  ;  Joseph  v.  Wild,  146  Ind.  249,  4.5  N. 
E.  467  (1896)  ;  Patterson  v.  Burlington,  141  Iowa,  291,  119  N.  W.  593  (1909)  ; 
Kastner  v.  Benz,  67  Kan.  486.  73  Pac.  67  (1903)  ;  St.  John  v.  Sinclair,  lOS 
Minn.  274,  122  N.  W.  164  (1909)  ;  Hudson  Tel.  Co.  v.  Jersey  City,  49  N.  J. 
Law,  303,  8  Atl.  123,  60  Am.  Rep.  619  (1887).  It  is  contended,  however,  upon 
principle,  that  a  mere  oral  license  is  revocable  at  will,  regardless  of  the  fact 
of  valuable  improvements  made  by  the  licensee,  and  this  view  is  supported  by 
the  weight  of  authority.  See  Turner  v.  Mobile,  135  Ala.  73,  33  South.  132 
(1902)  ;  West  Chicago  St.  By.  Co.  v.  People,  ^14  111.  9,  73  N.  E.  393  (1905)  ; 
Whittemore  v.  Kew  York,  etc.,  R.  Co.,  174  Mass.  363,  54  N.  E.  867  (1899)  ; 
Nowlin  Lumber  Co.  v.  Wilson,  119  Mich.  406,  78  N.  W.  338  (1899)  ;  Cook  v. 
Ferbert,  145  Mo.  462,  46  S.  W.  947  (1898)  ;  Johanson  v.  R.  Co.,  73  N.  J.  Law, 
767,  64  Atl.  1061  (1900) ;  Fowler  v.  Delaplain,  79  Ohio  St.  279,  87  N.  E.  260, 
21  L.  R.  A.  (N.  S.)  100  (1909).  And  see  25  Cyc.  648,  for  many  other  cases. 
Some  cases  hold  that  an  oral  permission  to  use  land,  followed  by  valuable  im- 
provements, is  in  fact  an  oral  grant  of  an  easement,  instead  of  a  mere  license, 
and  when  improvements  are  made  upon  the  faith  of  such  a  promise  equity 
will  regard  the  improvements  as  such  a  part  performance  of  the  agreement 
as  to  take  the  case  out  of  the  statute  of  frauds.  See  Cook  v.  Pridgen,  45  Ga. 
331,  12  Am.  Rep.  582  (1872)  ;  Houston  v.  Laifee,  46  N.  H.  508  (1806).  And 
see,  also,  Wood  v.  Leadbitter,  13  Mees.  &  W.  838  (1845),  where  Baron  Alderson 
says :  "A  mere  license  is  revocable,  but  that  which  is  called  a  license  is  often 
.something  more  than  a  license;  it  often  comprises  or  is  connected  with  a 
grant,  and  then  the  party  who  has  given  it  cannot  in  general  revoke  it,  so  as 
to  defeat  his  grant,  to  which  it  was  incident"     In  the  case  of  Johnson  v. 


372  EASEMENTS,    PROFITS   A   PRENDRE,    AND    RENTS 

II.  Creation  of  Easements  • 
1.  By  Grant 


See  Yeager  v.  Tuning,  ante,  p.  363. 


2.  By  Reservation  or  Exception 


DEE  V.  KING. 

(Supreme  Court  of  Vermont,  1905.    77  Vt.  230,  59  Atl.  839,  68  L.  R.  A.  860.) 

Appeal  in  chancery,  Franklin  county;   H.  R.  Start,  Chancellor. 

Suit  by  George  B.  Dee  against  Francis  King.  Bill  dismissed,  and 
orator  appeals.     Reversed. 

Argued  before  RowELE,  C.  J.,  and  TylEr,  Munson,  Watson,  Ha- 
SELTON,  and  Powers,  JJ. 

Watson,  J.  When  this  case  was  here  before  (73  Vt.  375,  50  Atl. 
1109)  the  decree  was  reversed  pro  forma,  and  the  cause  remanded 
for  additional  findings  of  fact  by  the  special  master  as  to  the  time 
when,  with  reference  to  March  16,  1882,  Jared  Dee  asked  and  ob- 
tained permission  of  the  defendant  to  cross  his  three-acre  piece  of 
land  on  the  east  side  of  the  Central  Vermont  Railroad.  On  the  hear- 
ing before  the  master  for  this  purpose  the  orator  introduced  no  fur- 
ther evidence.  The  defendant  testified  in  his  own  behalf,  and  from 
his  testimony  the  fact  is  found  that  Jared  Dee  first  asked  and  ob- 
tained of  the  defendant  permission  to  cross  that  land  in  January, 
1882.  The  orator  seasonably  objected  and  excepted  to  the  defend- 
ant's testifying  to  any  conversation  had  between  him  and  Jared  Dee 
on  this  point,  because  Jared  Dee  was  dead.  The  defendant  was  called 
and  used  as  a  witness  by  the  orator  at  the  first  hearing  upon  the 
question,  among  other  things,  whether  Jared  Dee  passed  through  and 
over  the  three-acre  piece,  his  habit  and  custom  in  so  doing,  to  what 
extent,  under  what  circumstances,  and  for  what  purpose.  The  ora- 
tor made  the  defendant  a  general  witness  upon  that  question,  and  he 
thereby  waived  the  statutory  incompetency  of  the  defendant  as  a 
witness  (Paine  v.  McDowell,  71  Vt.  28,  41  Atl.  1042;  Ainsworth  v. 
Stone,  73  Vt.  101,  50  Atl.  805),  and  he  could  not  afterwards  com- 

Skillman.  29  Minn.  95,  12  N.  W.  149,  43  Am.  St.  Rep.  192  (18S2)-,  the  court  says : 
"The  doctrine  of  the  early  cases,  which  converted  an  executed  license  into  an 
casement,  is  now  generally  discarded  as  beinii  'in  the  teeth  of  the  statute  of 
frauds.'  "  And  see,  also,  Pitzman  v.  Boyce,  111  Mo.  387,  19  S.  W.  1104,  33  Am, 
St.  Itep.  530  (1892). 

«  For  discussion  of  principles,  see  Burdick,  Real  Trop.  §  168. 


CREATION    OF   EASEMENTS  S73 

plain  because  the  defendant  gave  testimony  in  his  own  behalf  more 
fully  upon  the  same  subject-matter. 

Jared  Dee  having  obtained  permission  of  the  defendant  to  cross 
the  three-acre  piece  within  15  years  next  after  March  16,  1867,  the 
orator  can  have  no  prescriptive  way  over  it.  A  right  of  way  over 
this  land  is  neither  set  forth  nor  claimed  by  the  orator  in  his  bill ; 
yet,  in  one  aspect  of  the  case,  whether  he  has  such  a  way  is  material. 
The  only  right  of  way  claimed  by  the  orator  over  the  defendant's  land, 
so  far  as  appears  by  the  bill,  is  over  the  one-half  acre  piece  on  the 
west  side  of  the  Central  Vermont  Railroad,  as  reserved  by  Jared 
Dee  in  his  deed  dated  October  7,  1862,  conveying  that  land  to  Wil- 
liam W.  Pettingill.  In  that  deed,  immediately  following  the  descrip- 
tion of  the  land  conveyed,  is  the  clause,  "reserving  the  privilege  of  a 
pass  from  the  highway  past  the  house  to  the  railroad  in  my  usual 
place  of  crossing."  The  defendant  contends  that  these  words  are  only 
a  reservation  of  a  personal  privilege  to  Jared  Dee,  which  could  not 
pass  to  his  heirs  or  assigns,  because  no  words  of  inheritance  or  as- 
signment were  used  in  connection  therewith ;  while  the  orator  con- 
tends that  the  clause  has  the  force  of  an  exception,  and  that  the  servi- 
ent estate  thereby  created  passed  to  the  subsequent  owners  of  the 
dominant  estate  without  such  words  of  limitation  being  used. 

Much  depends  upon  the  construction  given  in  this  regard  in  the 
disposition  of  the  case.  Lord  Coke  says  that  "reserving"  sometimes 
has  the  force  of  "saving"  or  "excepting,"  "so  as  sometime  it  serveth 
to  reserve  a  new  thing,  viz.  a  rent,  and  sometime  to  except  part  of 
the  thing  in  esse  that  is  granted."  Co.  Litt.  143a.  Sheppard  says 
that  "a  reservation  is  a  clause  of  a  deed  whereby  the  feoffer,  donor, 
lessor,  grantor,  etc.,  doth  reserve  some  new  thing  to  himself  out  of 
that  which  he  granted  before.  And  this  doth,  most  commonly,  and 
properly,  succeed  the  tenendum.  *  *  *  fhis  part  of  the  deed  doth 
differ  from  an  exception  which  is  ever  of  part  of  the  thing  granted, 
and  of  a  thing  in  esse  at  the  time,  but  this  is  of  a  thing  newly  created 
or  reserved  out  of  a  thing  demised  that  was  not  in  esse  before,  so 
that  this  clause  doth  always  reserve  that  which  was  not  before,  or 
abridge  the  tenure  of  that  which  was  before."  Shepp.  Touch.  80. 
Again,  the  same  author  says  that  an  exception  clause  most  commonly 
and  properly  succeeds  the  setting  down  of  the  things  granted ;  that 
the  thing  excepted  is  exempted,  and  does  not  pass  by  the  grant. 
Page  77 .  The  same  principles  were  largely  laid  down  by  this  court 
in  Roberts  v.  Robertson,  53  Vt.  690,  38  Am.  Rep.  710.  There  the 
deed  given  by  the  plaintiff  contained  a  specific  description  of  the 
land  conveyed,  and  a  clause  "reserving  lots  *  *  *  32,  ZZ"  etc. 
Under  this  clause  the  plaintiff  claimed  title  to  the  two  lots  above 
named.  The  court,  after  stating  the  offices  of  an  exception  and  of  a 
reservation  the  same  as  above,  said  these  terms,  as  used  in  deeds, 
are  often  treated  as  synonymous,  and  that  words  creating  an  excep- 


374  EASEMENTS,    PROFITS    A    PRENDRE,    AND    RENTS 

lion  are  to  have  that  effect,  although  the  word  "reservation"  is  used.. 
It  was  held  that  the  clause  should  be  construed  as  an  exception. 

Iii_ii.ngland_it  has  been  held  that  a  right  of  way  cannot,  in  strict- 
ness, be  made  the  subject  of  either  an  exception  or  a  reservation; 
for  it  is  neither  parcel  of  the  thing  granted,  an  essential  to  an  ex- 
ception, nor  is  it  issuing  out  of  the  thing  granted,  an  essential  to  a 
reservation.  Doe  v.  Lock,  2  Ad.  &  E.  705 ;  Durham,  etc.,  R.  R.  Co. 
v.  Walker,  2  Q.  B.  945.  But  tliere,  as  in  this  country,  quasi  ease- 
ments are  recognized  in  law — such  as  a  visible  and  reasonably  neces- 
sary drain  or  way  used  by  the  owner  of  land  over  one  portion  of  it 
to  the  convenient  enjoyment  of  another  portion — and  there  has  never 
been  any  separate  ownership  of  the  quasi  dominant  and  the  quasi 
servient  tenements.  As  such  easement  a  drain  is  classed  as  contin- 
uous, because  it  may  be  used  continuously  without  the  intervention 
of  man;  and  a  right  of  way  as  noncontinuous,  because  to  its  use  the 
act  of  man  is  essential  at  each  time  of  enjoyment.  In  Barnes  v. 
Loach  (1S79)  4  Q.  B.  D.  494,  it  was  said  regarding  such  easements 
of  an  apparent  and  continuous  character  that,  if  the  owner  aliens 
the  quasi  dominant  part  to  one  person  and  the  quasi  servient  to  an- 
other, the  respective  alienees,  in  the  absence  of  express  stipulation, 
will  take  the  land  burdened  or  benefited,  as  the  case  may  be,  by  the 
qualities  which  the  previous  owner  had  a  right  to  attach  to  them. 
And  in  Brown  v.  Alabaster  (1888)  37  Ch.  D.  490,  it  was  said  that,, 
although  a  right  of  way  by  an  artificially  formed  path  over  one  part 
of  the  owner's  land  for  the  benefit  of  the  other  portion  could  not  be 
brought  within  the  definition  of  a  continuous  easement,  it  might 
be  governed  by  the  same  rules  as  are  apparent  and  continuous  ease- 
ments. 

Cases  involving  quasi  easements  have  been  before  this  court.  In 
Harwood  v.  Benton  &  Jones,  32  Vt.  724,  the  owner  of  a  water  priv- 
ilege, dam,  and  mill  also  owned  land  surrounding  and  bordering  upon 
the  millpond  and  mill,  which  he  subjected  to  the  use  and  convenience 
of  the  mill  privilege  and  mills.  A  part  of  these  adjacent  lands  thus 
subjected  was  conveyed  without  any  stipulation  in  the  deed  that  any 
servient  condition  attached  thereto.  The  condition  of  the  estate  had 
been  continuous,  was  obvious,  and  of  a  character  showing  that  it  was 
designed  to  continue  as  it  had  been.  The  court  said  this  was  a  pal- 
pable and  impressed  condition,  made  upon  the  property  by  the  vol- 
untary act  of  the  owner.  It  was  held  that  without  any  stipulation 
in  the  deed  upon  that  subject  the  law  was  that  the  grantee  took  the 
land  purchased  by  him  in  that  impressed  condition,  with  a  continu- 
ance of  the  servitude  of  that  parcel  to  the  convenience  and  beneficial 
use  of  the  mill.  It  was  there  laid  down  as  an  unquestioned  proposi- 
tion that  "upon  the  severance  of  a  heritage  a  grant  will  be  implied 
of  all  those  continuous  and  apparent  easements  which  have  in  fact 
been  used  by  the  owner  during  the  unity,  though  they  have  had  no 


CREATION    OF   EASEMENTS  375 

legal  existence  as  easements,"  and  that  the  doctrine  was  equally  well 
settled  that  the  law  will  imply  a  reservation  of  like  easements  in  favor 
of  the  part  of  the  inheritance  retained  by  the  grantor.  In  Goodall  v. 
Godfrey,  53  Vt.  219,  38  Am.  Rep.  671,  a  "visible,  defined  way  in 
use  for  the  obvious  convenience  of  the  whole  building"  was  in  ques- 
tion, consequent  on  a  division  of  the  property  among  the  representa- 
tives of  the  deceased  owner,  and  the  same  principles  of  law  were  ap- 
plied. And  in  Willey,  Adm'x,  v.  Thwing,  68  Vt.  128,  34  Atl.  428, 
applying  the  same  doctrines,  a  right  of  way  was  upheld  under  an  im- 
plied reservation. 

In  this  country  it  is  commonly  held  that  a  way  may  be  the  subject 
of  a  reservation,  a:nd  in  many  cases  courts  of  high  standing  have  held 
that  it  may  properly  be  the  subject  of  an  exception  in  a  grant.  While ' 
it  is  true  that  an  owner  of  land  cannot  have  an  easement  in  his  own 
estate  in  fee,  he  may,  as  before  seen,  have  a  quasi  easement  over 
one  portion  in  the  character  of  a  visible,  traveled  way  reasonably 
necessary  to  the  convenient  enjoyment  of  another  portion;  and  when 
such  a  way  exists  there  would  seem  to  be  no  substantial  legal  reason 
why  it  may  not  be  treated  as  a  thing  in  being,  and,  as  a  part  of  the 
estate  included  in  the  description  of  the  grant,  be  made  an  excep- 
tion in  a  deed  of  the  land  over  which  the  way  is,  when  such  appears 
to  have  been  the  intention  of  the  parties.  That  this  is  the  principle 
upon  which  a  clause  reserving  a  way  is  construed  as  an  exception 
appears  from  Chappell  v.  N.  Y.,  N.  H.  &  H.  R.  R.  Co.,  62  Conn. 
195,  24  Atl.  997,  17  L.  R.  A.  420,  which  is  more  particularly  re- 
ferred to  later.  There  the  court  said :  "Then,  too,  the  right  to  cross 
was,  in  a  certain  sense,  a  right  existing  in  the  grantors  at  the  date 
of  the  deed.  It  was  a  part  of  their  full  dominion  over  the  strip 
about  to  be  conveyed  by  the  deed,  and  not  a  right  to  be,  in  effect, 
conferred  upon  them  by  the  grantees.  It  was  something  which  the 
'reservation'  in  effect  'excepted'  out  of  the  operation  of  the  grant." 

The  distinction  between  a  reservation  and  an  exception  of  a  way 
is  best  understood  by  an  examination  of  cases  involving  clauses  very 
similar  to  the  one  here  under  consideration,  yet  so  unlike  as  to  re- 
quire different  constructions  in  this  regard.  In  Ashcroft  v.  Eastern 
R.  R.  Co.,  126  Mass.  196,  30  Am.  Rep.  672,  the  clause  was,  "reserv- 
ing to  myself  the  right  of  passing  and  repassing,  and  repairing  my 
aqueduct  logs  forever,  through  a  culvert  *  *  *  to  be  built  and 
kept  in  repair  by  said  company ;  which  culvert  shall  cross  the  rail- 
road at  right  angles,"  etc.  It  was  held  that  the  provision  that  the 
grantee  should  build  and  keep  in  repair  the  culvert  was  an  essential 
part  of  the  grant,  and  clearly  indicated  that  the  intention  of  the  par- 
ties was  to  confer  upon  the  grantor  a  new  right  not  before  vested 
in  him,  which,  therefore,  could  not  be  the  subject  of  an  exception. 
In  CMin  V.  Boston  &  Albany  R.  Co.,  157  Mass.  489,  32  N.  E.  659, 
20  L.  R.  A.  638,  the  clause  was,  "reserving  to  ourselves  the  right  of 


37G  EASEMENTS,    PROFITS    A    PRENDRE,    AND    RENTS 

a  passageway,  to  be  constructed  and  kept  in  repair  by  ourselves."' 
There  was  no  evidence  of  an  existing  way  across  the  land.  It  was 
held  to  be  a  reservation,  and  not  an  exception. 

In  Chappell  v.  N.  Y.,  N.  H.  &  H.  R.  R.  Co.,  before  cited,  John 
W.  and  Benjamin  F.  Brown,  in  1851,  owned  a  piece  of  land  in  New 
London  fronting  on  the  river  Thames,  and  lying  between  that  river 
and  Bank  street.  On  the  river  front  was  a  wharf  and  docks.  Be- 
tween the  wharf  and  Bank  street  was  about  11/2  acres  of  land  used 
by  the  Browns  in  carrying  on  a  coal  and  wharfage  business.  The 
wharf  was  valuable.  In  that  year  the  Browns  conveyed,  for  rail- 
road purposes,  a  strip  of  this  land,  25  feet  wide,  running  through  the 
land,  and  separating  the  wharf  from  the  land  lying  westerly  of  the 
strip  conveyed,  and  rendering  it  inaccessible  except  by  crossing  the 
strip.  This  right  of  crossing  was  indispensable  to  the  Browns  and 
all  who  might  thereafter  own  the  premises  then  owned  by  them.  The 
deed  thus  conveying  this  strip  contained  the  clause,  "And  we  reserve 
to  ourselves  the  privilege  of  crossing  and  recrossing  said  piece  of 
land  described,  or  any  part  thereof  within  said  bounds."  The  way 
at  the  time  of  the  date  of  the  deed  was  an  existing  one,  plainly  visi- 
ble, necessary,  and  in  almost  constant  use.  The  clause  was  con- 
strued to  be  an  exception. 

In  Bridger  v.  Pierson,  45  N.  Y.  601,  the  defendant  conveyed  land 
to  the  plaintiff,  and  immediately  following  the  description  the  deed 
contained  the  clause,  "reserving  always  a  right  of  way  as  now  used 
on  the  west  side  of  the  above-described  premises  *  *  *  from  the 
public  highway  to  a  piece  of  land  now  owned  by"  R.  It  was  held 
to  be  an  exception.  In  White  v.  N.  Y.  &  N.  E.  R.  R.  Co.,  156  Mass. 
181,  30  N.  E.  612,  the  action  was  tort  for  the  obstruction  of  a  private 
wa}^  claimed  by  the  plaintiff  over  the  location  of  the  defendant's 
railroad,  under  a  clause  in  a  deed  which  read,  "reserving  the  pass- 
way  at  grade  over  said  railroad  where  now  made."  This  way  had 
existed  as  a  defined  roadway  or  cart  track,  and  had  been  used  in 
passing  to  and  from  a  highway  to  and  from  parts  of  the  lot  north  of 
the  tracks  before  the  railroad  was  located,  and  before  the  deed  re- 
ferred to  was  given..    The  clause  was  held  to  be  an  exception. 

These  are  but  a  few  of  the  many  decisions  in  different  jurisdic- 
tions which  might  be  referred  to  upon  this  question,  but  more  are  un- 
necessary. 

The  language  of  the  clause  under  consideration  cannot  be  said  to  be 
unequivocal.  We  therefore  look  at  the  surrounding  circumstances 
existing  when  the  deed  containing  it  was  made,  the  situation  of  the 
parties,  and  the  subject-matter  of  the  instrument,  and  in  the  light 
thereof  the  clause  should  be  construed  according  to  the  intent  of  the 
parties.  At  the  time  of  making  this  deed  Jared  Dee  was  the  owner 
of  land  on  the  opposite  side  of  the  railroad,  consisting  of  a  three- 
acre  piece  of  tillage  land,  and  a  hill  lot  adjoining  it  on  the  norths 


CREATION    OF   EASEMENTS  377 

■chiefly  valuable  for  its  sugar  works,  for  its  pasturage,  and  as  a  wood 
and  timber  lot.  The  last-named  lot  is  traversed  its  entire  length  from 
north  to  south  and  about  a  third  of  its  width  from  west  to  east  by 
a  considerable  hill,  more  or  less  ledgy,  and  making  it  extremely  in- 
convenient to  cross  from  the  grantor's  own  land  north  of  the  Fair- 
banks land,  but  easily  reached  by  the  now  disputed  right  of  way 
across  the  one-half  acre  piece  and  over  the  three-acre  piece  of  tillage 
land.  The  greater  portion  of  Jared  Dee's  sugar  orchard,  timber,  and 
wood  was  on  top  and  east  of  this  hill.  There  was  no  way  to  or  out 
of  the  hill  lot  except  over  the  hill  on  Jared  Dee's  own  land  west  of  the 
Fairbanks  land,  or  out  through  the  three-acre  piece  and  the  one-half 
acre  piece  onto  the  public  highway  leading  westerly  to  Jared  Dee's 
house.  For  more  than  10  years  next  prior  to  the  time  when  Jared 
Dee  gave  the  deed  to  Pettingill  the  Dees  had  passed  over  the  one-half 
acre  piece  and  through  the  three-acre  piece  almost  exclusively  f©r 
all  purposes  whenever  they  went  to  or  from  the  hill  lot,  whether  with 
team,  on  foot,  or  in  any  other  manner,  except  when  they  got  wood 
on  the  west  side  of  the  lot  they  went  from  the  highway  across  the 
Fairbanks  farm  west  of  the  railroad,  thence  over  the  railroad  at  the 
"middle  crossing"  onto  the  hill  lot.  And  on  rare  occasions  they  used 
still  another  route  further  north,  wholly  over  Dee's  land. 

It  appears  from  the  deed  itself  that  in  crossing  the  one-half  acre 
piece  they  had  a  particular  place  of  traveling  then  known  to  both 
the  grantor  and  the  grantee,  for  the  words  used  in  the  deed  in  de- 
scribing it  are  "from  the  highway  past  the  house  to  the  railroad  in 
my  usual  place  of  crossing" ;  thus  showing  the  intention  of  the  par- 
ties to  be  that  the  grantor  should  retain  the  right  to  pass  through  this 
land  over  a  visible  traveled  way  then  in  existence,  and  that  no  new- 
way  was  thereby  being  created  for  his  benefit.  Clearly,  under  the 
law,  and  in  the  light  of  the  foregoing  circumstances,  the  clause  must 
be  construed,  not  as  a  reservation,  but  as  an  exception.  When  given 
this  construction,  technical  words  of  limitation  are  not  applicable,  for 
the  part  excepted  remained  in  the  grantor  as  of  his  former  title,  be- 
cause not  granted.  Cardigan  v.  Armitage,  2  Barn.  &  C.  197;  Chap- 
pell  v.  N.  Y.,  N.  H.  &  H.  R.  R.  Co.,  before  cited ;  Winthrop  v.  Fair- 
banks, 41  Me.  307.  We  think  the  parties  intended  that  by  this  pro- 
vision the  grantor  should  permanently  retain  from  the  grant  for  the 
benefit  of  his  land  east  of  the  railroad  the  way  over  the  one-half  acre 
piece,  which  he  had  been  accustomed  to  use  in  crossing  that  land  to 
and  from  the  land  first  named.  The  way  thus  retained  became  an 
easement  over  the  half-acre  piece  of  land  and  an  appurtenant  to  the 
other  land,  and  with  the  latter  it  would  pass  by  descent  or  assignment. 

Subsequent  to  conveying  the  one-half  acre  lot  to  Pettingill,  Jared 
Dee  sold  and  conveyed  the  three-acre  piece,  which  through  mesne 
conveyances  has  become  the  property  of  the  defendant.  But  this  can- 
not aflfect  the  easement  as  an  appurtenant  to  the  hill  lot,  for  a  right 


378  EASEMENTS,    PROFITS    A    PRENDRE,    AND    RENTS 

of  way  appurtenant  to  land  attaches  to  every  part  of  it,  even  though 
it  may  go  into  the  possession  of  several  persons.  Lansing  v.  Wiswall, 
5  Denio,  (N.  Y.)  213;    Underwood  v.  Carney,  1  Cush.  (Mass.)  285. 

The  master  finds  that  if,  upon  the  facts  reported,  the  orator  has  a 
right  of  way  or  a  right  to  cross  over  defendant's  land  to  the  hill 
lot,  then  the  orator  has  suffered  damage  by  reason  of  the  acts  of  the 
defendant  complained  of  in  the  bill  to  the  amount  of  $65.  The  pratQi 
can  recover  only  such  damages  as  he  has  suffered  by  acts  of  the  de- 
fendant in  obstructing  the  way  across  the  one-half  acre  piece,  consid- 
ering the  fact  that  the  orator  had  no  right  of  way  over  or  right  to 
cross  the  defendant's  three-acre  piece.  Upon  this  basis  the  damages 
have  not  been  assessed.  The  report  should  therefore  be  recommitted 
for  that  purpose,  and,  upon  such  damages  being  reported,  a  decree 
should  be  rendered  that  the  injunction  be  made  perpetual,  and  that 
the  defendant  pay  to  the  orator  the  damages  found,  with  costs  in  this 
court.     The  costs  in  the  court  below  should  be  there  determined. 

The  decree  dismissing  the  bill,  with  costs  to  the  defendant,  is  re- 
versed, and  cause  remanded,  with  mandate.'' 


3.  By  Implied  Grant 


HILDRETH  v.  GOOGINS. 
(Supreme  Judicial  Court  of  Maiue,  1S9S.     91  Me.  227,  39  Atl.  G-IO.) 

Exceptions  from  supreme  judicial  court,  York  county. 

Action  by  Herbert  L.  Hildreth  against  Lizzie  Googins.  Verdict  for 
plaintiff.  Defendant  moves  for  a  new  trial,  and  excepts.  Motion  and 
exceptions  overruled. 

Strout,  J.  The  controversy  in  this  case  is  whether  there  is  a  right 
of  way  from  the  lot  of  land  occupied  by  the  defendant  at  Old  Orchard, 
as  tenant  of  the  heirs  of  William  Emery,  over  and  across  the  plain- 
tiff's land  to  the  street,  as  appurtenant  to  defendant's  lot.     At  the 


7  In  England,  a  riixht  of  way  cannot  be  made  the  subject  either  of  exception 
or  reservation.  As  Tindal,  C.  J.,  said  in  Durham  &  Sunderland  Railway  Co. 
V.  Walker,  2  Q.  B.  960,  114  Eng.  Reprint.  372  (1842),  a  right  of  way  "is  nei- 
ther parcel  of  the  thing  granted,  nor  is  it  issuing  out  of  the  thing  granted ; 
the  former  being  essential  to  an  exception,  and  the  latter  to  a  reservation. 
A  right  of  way  'reserved'  to  a  lessor  (as  in  the  present  case)  is,  in  strictness 
of  law,  an  easement  newly  created  by  way  of  grant  from  the  grantee  or  lessee. 
*  *  *  It  is  not  indeed  stated  in  this  case  that  the  lease  was  executed  by 
the  lessee,  which  would  be  essential  in  order  to  establish  the  easement  claimed 
by  the  lessors  as  in  the  nature  of  a  grant  from  the  lessee;  but  we  presume 
that  in  fact  the  deed  was,  according  to  the  ordinary  practice,  executed  by 
both  parties,  lessee  as  well  as  lessor."  And  see  London  Corporation  v.  Kiggs, 
13  Ch.  D.  798   (1880). 


CREATION    OF    EASEMENTS  379 

trial  below  the  right  of  way  was  claimed  first  by  deed,  second  by 
prescription,  and  third  by  necessity.  The  evidence  failed  to  sustain 
either  of  the  first  two  claims,  and  they  are  abandoned  here.  But  it 
is  strenuously  contended  that  a  way  of  necessity  exists  from  defend- 
ant's lot  across  that  of  plaintiff. 

Lawrence  Barnes  on  June  15,  1871,  owned  in  one  tract  the  land, 
part  of  which  is  now  owned  by  the  plaintiff  and  part  by  the  heirs  of 
William  Emery.  On  that  day  he  conveyed  to  one  Seavey  that  part 
of  the  land  now  occupied  by  defendant.  William  Emery  derived  title 
under  this  deed  through  mesne  conveyances.  Barnes'  deed  to  Seavey 
did  not  contain  any  grant  of  a  right  of  way  across  Barnes'  remain- 
ing land.  Plaintifi:  derives  his  title  through  deed  from  Barnes  to 
Francis  Milliken,  dated  October  16,  1879,  and  mesne  conveyances. 
The  land  owned  by  the  Emery  heirs  is  bounded  on  one  side  by  the 
ocean.  No  access  to  it  from  the  street  can  be  had,  except  by  the 
ocean  or  crossing  land  of  other  owners.  Under  these  circumstances 
it  is  claimed  that  the  conveyance  by  Barnes  to  Seavey  implied  a  grant 
of  a  way  over  and  across  the  plaintiff's  lot,  then  owned  by  Barnes, 
as  appurtenant  to  defendant's  lot. 

"Implied  grants  of  this  character  are  looked  upon  with  jealousy, 
construed  with  strictness,  and  are  not  favored,  except  in  cases  of  strict 
necessity,  and  not  from  mere  convenience."  Kingsley  v.  Improvement 
Co.,  86  Me.  280,  29  Atl.  1074,  25  L.  R.  A.  502.  In  that  case  it  was 
held  by  this  court  that,  as  free  access  to  the  land  over  public  naviga- 
ble waters  existed,  a  way  by  necessity  over  the  grantor's  land  could 
not  be  implied.  The  same  rule  applies  here.  Defendant's  land  bor- 
ders on  the  ocean,  a  public  highway,  over  which  access  to  her  land 
from  the  street  can  be  had.  It  may  not  be  as  convenient  as  a  pas- 
sage by  land,  but  necessity,  and  not  convenience,  is  the  test.  Warren 
V.  Blake,  54  Me.  276,  89  Am.  Dec.  748;  Dolliff  v.  Railroad  Co.,  68 
Me.  176;  Stevens  v.  Orr,  69  Me.  324.  There  is  no  evidence  in  the 
case  that  the  water  way  is  unavailable. 

The  court  instructed  the  jury  that  the  ocean  was  a  public  highway ; 
and  to  a  question  by  a  juror,  "whether  the  ocean  was  a  public  high- 
way if  it  was  not  available,  and  whether  it  was  for  the  jury  to  de- 
cide whether  it  is  available  in  the  present  case,"  the  court  replied 
"that  if  there  was  any  evidence  as  to  availability  it  was  for  them  to 
decide,  but,  if  there  was  no  evidence,  they  must  assume  that  it  was 
available."  They  were  further  instructed  "that  cases  must  be  decided 
upon  the  evidence  introduced,  and  not  with  reference  to  any  individ- 
ual knowledge  that  any  juror  may  have;  and  I  give  now  the  general 
instruction  that,  nothing  appearing  to  the  contrary,  the  ocean  is  a 
highway." 
■"Exception  is  taken  to  these  instructions.  But  they  are  so  clearly 
in   consonance  with  well-established  principles  and  the  decisions  of 


3S0  EASEMENTS,    PROFITS    A    PRENDRE,    AND    RENTS 

this  court  that  it  is  unnecessary  to  discuss  them.     Kingsley  v.  Im- 
provement Co.,  supra;   Rolfe  v.  Rumford,  66  Me.  564. 

We  perceive  no  reason   for  disturbing  the  verdict  upon  the  mo- 
tion.   Motion  and  exceptions  overruled.* 


4.  By  Prescription 


LEHIGH  VALLEY  R.  CO.  v.  McFARLAN.' 
(Court  of  Errors  and  Appeals  of  New  Jersey,  1881.  43  N.  J.  Law,  605.) 
Depue),  J.^°  *  ♦  *  f^Q  defendant  also  contended  at  the  trial 
that  the  right  to  maintain  its  dam  at  its  present  height  had  been  ac- 
quired by  adverse  enjoyment.  If  the  defendant,  or  the  canal  com- 
pany, under  whom  it  claims,  has  acquired  the  right  in  dispute  by 
prescription,  the  subject  already  discussed  becomes  of  no  importance 
in  this  litigation.  It  will  be  necessary,  therefore,  to  examine  the 
instructions  of  the  judge  on  this  head. 

The  instruction  was,  in  substance  and  effect,  that  mere  verbal  pro- 
tests and  denial  of  the  right,  without  any  interruption  or  obstruction 
in  fact,  of  the  enjoyment  of  the  right,  would  prevent  the  acquisition 
of  an  easement  by  adverse  user.  This  instruction  follows  the  opin- 
ion of  the  Vice-Chancellor,  in  Lehigh  Valley  R.  R.  Co.  v.  McFarlan, 
30  N.  J.  Eq.  180. 

At  common  law  there  was  no  fixed  period  of  prescription.  Rights 
were  acquired  by  prescription  only  when  the  possession  or  enjoyment 
was  "time  whereof  the  memory  of  man  ran  not  to  the  contrary."  By 
20  Hen.  Ill,  c.  8,  the  limitation  in  writs  of  right  dated  from  the  reign 
of  Henry  11.  By  3  Edw.  I,  c.  39,  the  limitation  was  fixed  from  the 
reign  of  Richard  I.  By  21  Jac.  I,  c.  16,  the  time  for  bringing  pos- 
sessory actions  was  limited  to  twenty  years  after  the  right  accrued. 
Thes°  statutes  applied  only  to  actions  for  the  recovery  of  land;  none 
of  them  embraced  actions  in  which  the  right  to  an  incorporeal  here- 
ditament was  involved.  But  by  judicial  construction  an  adverse  user 
of  an  easement  for  the  period  mentioned  in  the  statutes,  as  they  were 
passed  from  time  to  time,  became  evidence  of  a  prescriptive  right; 
and  finally,  the  fiction  was  invented  of  a  lost  grant,  presumed  from 

8  Contrary  to  the  rule  of  strict  necessity  laid  down  in  the  Maine  cases, 
supra,  and  some  others  (see  Buss  v.  Dyer,  125  Mass.  287  [1878];  Shaver  v. 
Edgell,  48  W.  Va.  502,  .37  S.  E.  664  [1900]),  it  is  the  general  view  that  the 
degree  of  necessity  required  is  such  as  makes  for  the  convenient  and  com-' 
fortable  enjoyment  of  the  property.  See  Cave  v.  Crafts,  53  Cal.  135  (1S78)  ; 
Bitello  v.  Lipson,  80  Conn.  497,  69  Atl.  21,  16  L.  R.  A.  (N.  S.)  193,  125  Am. 
St.  Rep.  126  (1908)  ;  .Tanes  v.  .Jenkins,  34  Md.  1,  6  Am.  Rep.  300  (1871) ; 
Cannon  v.  Boyd,  73  Pa.  179  (1873). 

»  For  the  first  part  of  this  case,  see  post,  p.  584. 

10  Part  of  the  opinion  is  omitted. 


CREATION    OF    EASEMENTS  381 

such  user  to  have  once  been  in  existence  and  to  have  become  lost.  The 
fiction  of  a  lost  grant  seems  to  have  been  devised  after  the  statute  of 
James.  It  was  called  a  lost  grant,  not  to  indicate  that  the  fact  of  the 
existence  of  the  grant  originally  was  of  importance,  but  to  avoid  the 
rule  of  pleading  requiring  profert.  Allegation  of  the  loss  of  the  grant 
excused  profert  and  bringing  the  instrument  into  court. 

Whatever  strictures  may  have  been  made  upon  this  method  of  ju- 
dicial legislation,  the  fiction  has  been  promotive  of  beneficial  results, 
and  forms  the  basis  of  prescriptive  titles,  and  it  is  now  too  late  to  ques- 
tion the  validity  of  its  introduction.  The  doctrine  of  lost  grant  forms 
part  of  the  law  of  the  land,  and  any  dislike  which  may  be  felt  for  this 
and  like  fictions  cannot  be  allowed  to  interfere  with  the  carrying  out 
of  the  doctrines  involved  in  them  to  the  full  extent,  which  has  been 
sanctioned  by  established  authority.  Angus  v.  Dalton,  4  Q.  B.  D.  161, 
per  Thesiger,  L.  J. 

At  a  very  early  period  it  was  held  that  when  by  the  statute  of  lim- 
itations the  seizin  in  a  writ  of  right  was  limited  to  the  time  of  Rich- 
ard I.,  although  a  man  might  prove  to  the  contrary  of  a  thing  whereof 
the  prescription  was  made,  yet  this  should  not  destroy  the  prescrip- 
tion if  the  proof  was  of  a  thing  before  the  said  time  of  limitation. 
2  Roll.  Abr.  269;  17  Vin.  Abr.  272,  "Prescription,"  M.  Afterwards, 
when  the  fiction  of  a  lost  grant  was  devised,  there  arose  considerable 
diversity  and  fluctuation  in  judicial  opinions  as  to  whether  an  uninter- 
rupted user  for  the  period  of  limitation  conferred  a  legal  right  or 
raised  merely  a  presumption  of  title  which  would  stand  good  until 
the  presumption  was  overcome  by  evidence  which  negatived,  in  the 
judgment  of  juries,  the  existence  of  a  grant.  This  state  of  the  law 
produced  great  insecurity  to  titles  by  prescription,  and  subjected  such 
rights  to  the  whim  and  caprice  of  juries.  This  evil  was  remedied  by 
the  later  English  authorities,  which  gave  to  the  presumption  of  title 
arising  from  an  uninterrupted  enjoyment  of  twenty  years  the  most 
unshaken  stability,  and  made  it  conclusive  evidence  of  a  right.  3  Kent, 
445.  The  judicial  expression  of  opinion  in  England,  nearest  to  the 
time  of  the  separation  of  the  colonies  from  the  mother  country,  is  that 
of  Lord  Mansfield,  in  Cowper,  215,  where  he  says  that  effect  is  given 
to  the  presumption,  "not  that  in  such  cases  the  court  really  thinks  a 
grant  has  been  made,  because  it  is  not  probable  a  grant  should  have 
existed  without  its  being  upon  record,  but  they  presume  the  fact  for 
the  purpose  and  from  the  principle  of  quieting  the  possession."  The 
question  has  been  set  at  rest  in  England  by  the  statute  2  and  3  Wil- 
liam IV.  But  no  one  can  examine  the  English  cases  for  half  a  cen- 
tury preceding  the  statute,  without  observing  that  the  statute  in  its 
main  features  was  simply  declarative  of  the  law  as  expressed  by  the 
great  weight  of  judicial  opinions. 

In  this  country  the  prevailing  doctrine  is  that  an  exclusive  and  un- 
interrupted enjoyment  for  twenty  years  creates  a  presumption,  juris 


382  EASEMENTS,    PROFITS    A    PRENDRK,    AND    RENTS 

€t  de  jure,  and  is  conclusive  evidence  of  title  whenever,  by  possibility, 
a  right  may  be  acquired  by  grant. 

In  the  class  of  legal  presumptions  established  by  judicial  decisions 
which  have  become  part  of  the  common  law  of  the  land,  and  are 
imperative  rules  of  law  against  the  operation  of  which  no  averment 
or  evidence,  is  received.  Prof.  Greenleaf  classes  the  presumption  of  a 
grant  arising  from  an  exclusive  and  uninterrupted  enjoyment  for  the 
period  of  prescription.  1  Greenl.  Ev.  §  17.  He  also  says  that,  by 
the  weight  of  authority,  as  well  as  the  preponderance  of  opinion,  it 
may  be  stated  as  the  general  rule  of  the  American  law,  that  an  enjoy- 
ment of  an  incorporeal  hereditament,  adverse,  exclusive  and  uninter- 
rupted for  twenty  years,  affords  a  conclusive  presumption  of  a  grant 
or  a  right,  as  the  case  may  be,  which  is  to  be  applied  as  a  presumptio 
juris  et  de  jure,  wherever  by  possibility  a  right  may  be  acquired  in 
any  manner  known  to  the  law.  2  Greenl.  Ev.  §  539.  This  passage 
is  quoted  and  adopted  by  another  distinguished  writer  on  American 
law,  as  a  correct  exposition  of  the  law  on  the  subject.  2  Washb.  on 
Real  Prop.  449.  This  doctrine  has  the  support  of  Mr.  Justice  Story, 
in  Tyler  v.  Wilkinson,  4  Mason,  397,  Fed.  Gas.  No.  14,312,  and  is 
approved  and  enforced  by  Justices  Wilde  and  Putnam,  in  the  two  lead- 
ing cases  of  Coolidge  v.  Learned,  8  Pick.  (Mass.)  504,  and  Sargeant 
v.  Ballard,  9  Pick.  (Mass.)  251. 

The  difference  between  the  English  law,  in  the  state  it  had  reached 
before  the  statute  2  and  3  William  IV.,  and  the  American  law,  is  slight. 
In  England  the  presumption  was  dealt  with  as  a  presumption  of  fact ; 
but  for  all  practical  purposes  it  was  a  legal  presumption,  as  it  depended 
on  pure  legal  rules.  Coolidge  v.  Learned,  per  Putnam,  J.  ^  Though  the 
evidence  of  enjoyment  was,  in  theory,  presumptive  evidence  only  of 
prescription,  yet  it  was,  in  practice  and  effect,  conclusive.  Gale  on 
Easm.  (95)  149.  At  last  the  English  Court  of  Appeals  held  that  the 
presumption  arising  from  the  uninterrupted  enjoyment  of  an  easement, 
operated  as  an  estoppel  by  conduct,  not  conclusive,  so  far  as  to  ex- 
clude denial  or  explanation  of  the  conduct,  but  a  bar  to  any  simple 
denial  of  the  fact,  which  is  a  mere  legal  inference  drawn  from  such 
conduct ;  and  consequently  that  the  circumstance  that  no  grant  of  the 
easement  had  been  made  was  not  material.  Angus  v.  Dalton,  4  Q. 
B.  Div.  162. 

In  this  state  the  law  may  be  considered  as  settled  in  accordance 
with  the  prevailing  doctrine  in  the  courts  of  this  country.  In  Camp- 
bell V.  Smith,  8  N.  J.  Law,  143,  14  Am.  Rep.  400,  Chief  Justice  Ew- 
ing,  speaking  of  a  right  acquired  by  adverse  user,  says :  "Statutes 
of  limitation  prescribing  the  time  within  which  an  entry  shall  be  made 
into  lands,  tenements  or  hereditaments,  and  within  which  every  real, 
possessory,  ancestral,  mixed  or  other  action  for  any  lands,  tenements 
or  hereditaments  shall  be  brought,  are  not  deemed  to  comprehend  in 
terms,  and  within  their  purview,  the  right  now  under  consideration; 


CREATION    OF    EASEMENTS  383 

but,  upon  the  wise  principle  of  such  statutes,  and  in  analogy  to  theni, 
to  quiet  men  in  possession,  and  to  put  an  end  and  fix  a  limit  to  strife, 
a  rule  is  established  that,  after  the  lapse  of  the  period  mentioned  in 
those  statutes,  a  grant  will  be  presumed,  not,  says  Lord  Mansfield 
(Cowper,  214),  that  in  such  cases  the  court  really  thinks  a  grant  has 
been  made,  but  they  presume  the  fact  for  the  purpose  of  and  from  a 
principle  of  quieting  the  possession.  The  period  of  twenty  years  is 
settled  in  England,  according  with  the  time  mentioned  in  the  statute 
of  21  Jac.  I.  Our  statute  prescribing  a  like  period,  our  rule  is  the 
same."  This  passage  was  quoted  by  Chancellor  Vroom,  in  Shreve  v. 
Voorhees,  3  N.  J.  Eq.  32,  as  a  correct  expression  of  the  law  of  New 
Jersey.  The  same  principle  was  adopted  by  Chancellor  Pennington, 
in  Shields  v.  Arndt,  4  N.  J.  Eq.  247,  by  Chancellor  Zabriskie,  in  Car- 
lisle V.  Cooper,  19  N.  J.  Eq.  259,  and  by  the  Supreme  Court,  in  Wood 
V.  Hurd,  34  N.  J.  Law,  87.  In  the  case  last  cited,  Mr.  Justice  Van 
Syckel,  in  discussing  the  kindred  subject  of  a  dedication  to  the  public 
acquired  by  user,  says  that  "mere  acquiescence  for  twenty  years,  un- 
accompanied by  any  act  which  repeals  the  presumption  of  such  inten- 
tion" (to  dedicate)  "is  conclusive  evidence  of  abandonment  to  the 
public." 

The  owner  of  the  servient  tenement  cannot  overcome  the  presump- 
tion of  right  arising  from  an  uninterrupted  user  of  twenty  years,  by 
proof  that  no  grant  was  in  fact  made.  He  may  rebut  the  presumption 
by  contradicting  or  explaining  the  facts  upon  which  it  rests;  but  he 
cannot  overcome  it  by  proof  in  denial  of  a  grant.  He  may  show  that 
the  right  claimed  is  one  that  could  not  be  granted  away,  or  that  the 
owner  of  the  servient  tenement  was  legally  incapable  of  making,  or 
the  owner  of  the  dominant  tenement  incapable  of  receiving  such  a 
grant.  Rochdale  Canal  v.  Radcliffe,  18  Q.  B.  287;  Ellwell  v.  Bir- 
mingham Canal,  3  H.  of  L.  812;  Staffordshire  Canal  v.  Birmingham 
Canal,  L.  R.  1  H.  of  L.  254;  Thorpe  v.  Corwin,  20  N.  J.  Law,  312. 
He  may  explain  the  user  or  enjoyment  by  showing  that  it  was  under 
permission  asked  and  granted,  or  that  it  was  secret  and  without  means 
of  knowledge  on  his  part,  or  that  the  user  was  such  as  to  be  neither 
physically  capable  of  prevention  nor  actionable.  Chasemore  v.  Rich- 
ards, 7  H.  of  L.  Cas.  349,  Webb  v.  Bird,  13  C.  B.  (N.  S.)  841 ;  s.  c.  10 
C.  B.  (N.  S.)  268;  Sturges  v.  Bridgman,  11  Ch.  Div.  852.  But  if 
there  be  neither  legal  incompetency  nor  physical  incapacity,  and  the 
user  be  open  and  notorious,  and  be  such  as  to  be  actionable  or  capable 
of  prevention  by  the  servient  owner,  he  can  only  defeat  the  acquisi- 
tion of  the  right  on  the  ground  that  the  user  was  contentious,  or  the 
continuity  of  the  enjoyment  was  interrupted  during  the  period  of 
prescription. 

In  defining  title  by  prescription,  Sir  Edward  Coke  says,  both  to  cus- 
toms and  prescriptions,  these  two  things  are  incidents  inseparable,  viz., 
possession  or  usage  and  time.     Possession  must  have  these  qualities : 


384         EASEMENTS,  PROFITS  A  PRENDRE,  AND  RENTS 

It  must  be  long,  continual  and  peaceable;  long,  that  is,  during  the 
time  defined  by  law;  continuous,  that  is,  that  it  may  not  have  been 
lawfully  interrupted;  peaceable,  because  if  it  be  contentious  and  the 
opposition  be  on  good  grounds,  the  party  will  be  in  the  same  condi- 
tion as  at  the  beginning  of  his  enjoyment.  Co.  Lit.  113b.  By  a  long 
course  of  decision,  the  word  "interrupted,"  when  applied  to  acts  done 
by  the  servient  owner,  has  received  a  fixed  meaning  as  indicating  an 
obstruction  to  the  use  of  the  easement,  some  act  of  interference  with 
its  enjoyment,  which,  if  unjustifiable,  would  be  an  actionable  wrong. 
This  meaning  has  been  given  to  the  word  as  used  in  the  statute  2  and 
3  William  IV  (Parke,  B.,  in  Olney  v.  Gardner,  4  M.  &  W.  495),  and  is 
its  usual  signification. 

Sir  Edward  Coke  gives  no  illustration  of  what  was  meant  by  con- 
tentious, except  "opposition  on  good  grounds,"  and  by  a  quotation 
from  Bracton,  who  wrote  in  a  primitive  era  of  English  law,  before 
the  doctrine  of  prescription,  as  applied  to  incorporeal  hereditaments, 
had  been  subjected  to  the  formative  processes  of  judicial  expositions 
from  which  the  present  state  of  the  law  is  derived.  The  expression 
"opposition  on  good  grounds"  implies  an  act  which  would  afford  an 
opportunity  to  submit  its  validity  to  the  test  of  judicial  decision,  and 
is  more  consistent  with  the  idea  of  an  interference  with  the  enjoy- 
ment of  the  right,  such  as  would  give  the  owner  ability  to  go  into 
court  and  establish  his  right,  than  with  the  supposition  that  prescriptive 
rights  should  be  forever  kept  in  abeyance  by  acts  which  gave  persons 
claiming  them,  no  power  by  suit  at  law  to  establish  the  right.  In  the 
passage  quoted  by  Coke  from  Bracton,  this  early  writer  says:  "I  use 
the  term  peaceable,  because  if  it  be  contentious,  it  will  be  the  same  as 
before,  if  the  contention  has  been  just;  as  if  the  true  lord  forthwith, 
when  the  intruder  or  disseizor  has  entered  into  seizin,  endeavors  soon 
and  without  delay  (if  he  should  be  present,  or  if  absent  when  he  shall 
have  returned,)  to  repel  and  expel  such  persons  by  violence,  although 
he  cannot  carry  out  to  its  effect  what  he  has  commenced,  provided, 
however,  when  he  fails  he  is  diligent  in  requesting  and  in  pursuing." 
Bract,  fols.  51,  52,  Mr.  Goddard,  in  discussing  an  enjoyment  which 
is  not  peaceable,  defines  vi  in  the  phrase  vi  clam  aut  precario,  to  mean 
violence  or  force  and  strife,  or  contention  of  any  kind ;  and  the 
illustration  he  gives  is  where  the  enjoyment  has  been  during  a  period 
of  litigation  about  the  right  claimed,  or  the  user  has  been  continually 
interrupted  by  physical  obstacles  placed  with  a  view  of  rendering  user 
impracticable.  Goddard  on  Easem.  172.  In  the  English  cases,  peace- 
fulness  and  acquiescence  (when  the  servient  owner  knows  or  might 
have  known  that  a  right  is  claimed  against  his  interest)  are  used  in- 
differently as  equivalent  to  uninterrupted. 

In  this  country  several  decisions  have  been  referred  to  as  holding 
that  prohibitions,  remonstrances  and  denials  of  the  right  by  the  owner 
of  the  servient  tenement,  unaccompanied  by  any  act  of  interference 


CKEATION    OF   EASEMENTS  385 

with  the  enjoyment  of  the  easement,  will  prevent  the  acquisition  of 
the  right.  These  cases  are  a  legitimate  outcome  of  the  doctrine  that 
the  presumption  is  not  a  presumption  juris  et  de  jure,  but  is  a  pre- 
sumption merely,  liable  to  be  rebutted  by  the  proof  of  circumstances 
overcoming  the  presumption  of  a  grant.  This  doctrine  is  supposed 
to  have  its  chief  support  in  Powell  v.  Bagg,  8  Gray  (Mass.)  441,  69 
Am.  Dec.  262. 

In  Powell  V.  Bagg,  proof  that  the  owner,  when  on  the  land,  forbade 
the  party  claiming  an  easement  of  the  flow  of  water  over  his  premises 
to  enter,  and  ordered  him  off,  while  there  for  the  purpose  of  repairing 
the  aqueduct,  was  adjudged  to  be  competent  evidence  of  an  interrup- 
tion, and  an  instruction  that  words,  however  strongly  denying  the 
right  claimed  or  forbidding  its  exercise  unaccompanied  by  any  act  or 
deed,  was  not  an  interruption  of  the  user  or  enjoyment,  was  held 
to  be  defective  and  tended  to  mislead  the  jury.  The  evidence  before 
the  trial  court  is  not  fully  reported.  Evidence  that  the  owner  of  the 
land  forbade  the  other  party  to  enter,  and  ordered  him  off,  was  un- 
doubtedly competent  as  part  of  the  plaintiff's  case.  Whether  what 
occurred  at  that  time  would  amount  to  an  interruption  of  the  easement, 
would  depend  upon  circumstances,  upon  the  conduct  of  the  party 
when  forbidden  to  enter  or  when  ordered  off.  If  the  owner  of  the 
servient  tenement,  being  on  the  premises,  forbids  the  owner  of  the 
easement  to  enter  for  the  purpose  of  enjoying  it  and  orders  him  off,  and 
the  latter,  on  a  well-grounded  apprehension  that  the  former  means  to 
enforce  obedience  to  his  commands,  desists  and  withdraws,  an  action 
on  the  case  for  disturbance  of  the  right  would  lie.  This  view  must 
have  been  present  in  the  mind  of  the  court,  else  why  restrict  the  pro- 
hibition to  place-on  the  land?  To  give  certainty  to  the  owner's  pur- 
pose? A  prohibition  delivered  elsewhere  might  be  so  vehement  and 
emphatic  as  to  leave  the  denial  of  the  right  equally  beyond  a  doubt. 
On  any  other  view  of  the  case,  as  was  said  in  C.  &  N.  W.  R.  R.  Co. 
V.  Hoag,  90  111.  340,  "the  circumstances  of  the  place  where  the  for- 
biddance  was  made,  whether  on  or  off  the  land,  would  be  immaterial." 
If  facts  such  as  are  above  indicated,  appeared  in  the  case,  the  charge 
was,  in  the  language  of  the  court,  "defective,  and  tended  to  mislead 
the  jury  in  applying  the  evidence  to  the  rule  of  law  upon  which  the 
title  of  the  defendant  to  the  easement  rested."  Certain  expressions 
from  the  opinion  have  been  quoted  as  indicating  that  a  verbal  denial 
of  the  right  will  operate,  ipso  facto,  to  determine  the  right.  If  that 
view  be  adopted,  or  the  suggestion  of  Mr.  Justice  Woodbury  (3  Woodb. 
&  M.  551),  that  complaints  and  the  taking  of  counsel  against  such 
encroachments  will  bar  the  right,  be  followed,  it  is  obvious  that  rights 
by  prescription  will  be  of  little  value. 

None  of  the  authorities  cited  by  the  learned  judge  in  Powell  v. 
Bagg  goes  to  the  extent  contended  for.  The  passage  quoted  from 
Bukd.Cas.Eeal  Prop. — 25 


386         EASEMENTS,  PROFITS  A  PRENDRE,  AND  RENTS 

Bracton,  that  an  easement  will  be  acquired  by  its  exercise  under  a 
claim  of  right  per  patientiam  veri  ddmini  qui  scivit  et  non  prohibuit 
sed  permisit  de  consensu  tacito,  is  followed  by  the  comment  that  suf- 
ferance is  taken  for  consent,  and  that  if  the  lord  of  the  property, 
through  sufferance,  has,  when  present  and  knowing  the  fact,  allowed 
his  neighbor  to  enjoy  on  his  estate  a  servitude  for  a  long  time  peace- , 
ably  and  without  interruption  from  such  enjoyment  and  sufferance, 
there  is  a  presumption  of  consent  and  willingness.  Bract,  lib.  2,  c.  23, 
§  1.  In  the  passage  referred  to  in  Greenleaf,  the  language  is  that  the 
user  must  be  adverse — that  is,  under  a  claim  of  title — with  the  knowl- 
edge and  acquiescence  of  the  owner  of  the  land,  and  uninterrupted. 
2  Greenl.  Ev.  §  539.  In  Sargent  v.  Ballard,  9  Pick.  (Alass.)  254,  255, 
Weld,  J.,  in  discussing  the  methods  by  which  a  claim  of  title  by  pre- 
scription may  be  controverted  by  disproving  the  qualities  and  ingredi- 
ents of  such  a  title,  says  that  "evidence  might  be  given  to  prove  that 
the  use  had  been  interrupted,  thereby  disproving  a  continued  acquies- 
cence of  the  owner  for  twenty  years."  In  Arnold,  v.  Stevens,  24  Pick. 
(Mass.)  112,  35  Am.  Dec.  305,  the  plaintiffs'  claim  was  of  a  right  to 
dig  ore  under  a  grant  by  deed.  They  had  not  exercised  the  right  for 
forty  years.  In  the  meantime  the  owner  had  occupied  and  cultivated 
the  surface  of  the  land.  The  court  held  that  there  was  no  enjoyment 
hostile  to  the  easement,  for  the  owner  of  the  land  had  done  "nothing 
adverse  to  the  rights  of  the  ow^ners  of  the  easement — nothing  to  which 
they  could  object,  or  which  would  apprise  them  of  the  existence  of 
any  hostile  claim,  and  no  acquiescence,  therefore,  existed  from  which 
a  conveyance  could  be  presumed."  In  Alonmouthshire  Canal  Co.  v. 
Harford,  1  C,  M.  &  R.  614,  evidence  was  given  of  applications  made 
on  behalf  of  the  claimants  of  the  easement  for  permission  to  exercise 
the  right.  The  court  held  that  permission  asked  for  and  received 
was  admissible  to  show  that  the  enjoyment  was  not  of  right  nor  con- 
tinuous and  uninterrupted,  for  "every  time  the  occupiers  asked  for 
leave  they  admitted  that  the  former  license  had  expired,  and  that  the 
continuance  of  the  enjoyment  was  broken."  In  neither  of  these  cases 
was  the  effect  of  verbal  remonstrances  or  complaints,  as  evidence  of 
an  interruption  of  enjoyment,  considered. 

Nor  do  the  additional  English  cases  cited  by  plaintift"'s  counsel  in 
his  brief  meet  the  point  under  consideration.  *  *  *  Mr.  God- 
dard,  waiting  after  all  these  cases  were  decided,  in  his  excellent  trea- 
tise, says :  "It  is  commonly  said  that  no  easement  can  be  acquired  by 
prescription  if  the  user  has  been  enjoyed  vi  clam  aut  precario.  The 
word  'vi'  does  not  simply  mean  by  violence  or  force,  but  it  means 
also  by  strife  or  contention  of  any  kind — as,  for  instance,  that  the 
enjoyment  has  been  during  a  period  of  litigation  about  the  right 
claimed,  or  that  the  user  has  been  continually  disputed  and  interrupted 
by  physical  obstacles  placed  with  a  view  of  rendering  the  user  imprac- 
ticable."   Goddard  on  Easem.  172. 


CREATION    OF    EASEMENT8  387 

I  have  not  discovered  in  the  English  cases  any  intimation  that  mere 
denials  of  the  right,  complaints,  remonstrances,  or  prohibitions  of 
user,  will  be  considered  interruptions  of  the  user  of  an  easement,  or 
as  indicating  that  the  enjoyment  of  it  was  contentious.  On  the  con- 
trary, whenever  the  subject  has  been  mentioned,  it  has  elicited  expres- 
sions of  marked  disapprobation  of  such  a  proposition.  This  is  con- 
spicuously apparent  in  the  opinions  of  Bayley,  J.,  in  Cross  v.  Lewis,  2 
B.  &  C.  689;  of  Lush,  J.,  in  Angus  v.  Dalton,  3  Q.  B.  D.  85;  and 
of  Thesiger  and  Cotton,  Lords  Justices,  in  the  same  case,  as  reported 
in  4  O.  B.  D.  172,  186.  Thesiger,  L.  J.,  in  considering  the  nature  of 
the  evidence  which  shall  contradict,  explain  or  rebut  the  presumption 
of  right  arising  from  an  uninterrupted  possession  of  twenty  years. 
says  that  it  is  "not  sufficient  to  prove  such  circumstances  as  negative 
an  actual  assent  on  the  part  of  the  servient  owner,  or  even  evidence  of 
dissent  short  of  actual  interruption  or  obstruction  to  the  enjoyment." 
In  Angus  v.  Dalton,  the  easement  was  not  such  as  came  within  the 
statute  2  and  3  William  IV ;  and  the  case  was  discussed  and  decided 
upon  the  principles  of  the  common  law,  independently  of  the  statutory 
provision. 

Some  confusion  on  the  subject  has  arisen  from  the  failure  to  dis- 
criminate between  negative  and  affirmative  easements ;  negative  ease- 
ments, such  as  easements  of  light,  and  of  the  lateral  support  of  build- 
ings, which  cannot  lawfully  be  interrupted  except  by  acts  done  upon 
the  servient  tenement;  and  affirmative  easements,  such  as  ways  and 
the  overflowing  of  lands  by  water,  which  are  direct  interferences  with 
the  enjoyment  by  the  servient  owner  of  the  premises,  and  may  be  the 
subject  of  legal  proceedings  as  well  as  of  physical  interruption.  This 
distinction  is  pointed  out  by  the  court  in  Sturges  v.  Bridgman,  11  Ch. 
D.  852.  In  Angus  v.  Dalton,  the  Queen's  Bench  decided  that  the  neg- 
ative easement  of  lateral  support  of  buildings  could  not  be  acquired  by 
prescription,  for  the  reason  that  the  owner  of  the  adjoining  premises 
had  no  power  to  oppose  the  erection  of  the  building  and  no  reason- 
able means  of  resisting  or  preventing  the  enjoyment  of  its  lateral  sup- 
port from  his  adjoining  lands.  But  this  decision  was  overruled  in 
the  Court  of  Appeals.  Angus  v.  Dalton,  3  Q.  B.  D.  85 ;  4  Id.  162. 
With  respect  to  such  an  easement  there  is  great  force  of  reasoning 
in  the  contention  that  slight  acts  of  dissent  should  avail  to  defeat  the 
acquisition  of  a  right ;  for  it  would  be  unreasonable  to  compel  the 
owner  of  the  adjoining  lands  to  dig  down  and  undermine  the  founda- 
tions or  to  put  him  to  legal  proceedings  quia  timet  to  preserve  do- 
minion over  his  property.  But  no  such  considerations  of  hardship 
or  inconvenience  exist  when  the  easement  is  a  right  of  way,  which, 
whenever  the  right  is  exercised,  is  a  palpable  invasion  of  property  and 
may  easily  be  obstructed,  or  is  an  easement  of  flooding  lands,  which 
is  really,  though  not  technically,  a  disseizin  pro  tanto,  and  can  easily 
be  interrupted. 


388  EASEMENTS,    PROFITS   1   PRENDRE,    AND    RENTS 

The  whole  doctrine  of  prescription  is  founded  on  public  policy. 
It  is  a  matter  of  public  interest  that  title  to  property  should  not  long 
remain  uncertain  and  in  dispute.  The  doctrine  of  prescription  con- 
duces, in  that  respect,  to  the  interest  of  society,  and  at  the  same  time 
is  promotive  of  private  justice  by  putting  an  end  to  and  fixing  a  limit 
to  contention  and  strife.  Protests  and  mere  denials  of  right  are  evi- 
dence that  the  right  is  in  dispute,  as  distinguished  from  a  contested 
right.  If  such  protests  and  denials,  unaccompanied  by  an  act  which 
in  law  amounts  to  a  disturbance  and  is  actionable  as  such,  be  permitted 
to  put  the  right  in  abeyance,  the  policy  of  the  law  will  be  defeated, 
and  prescriptive  rights  be  placed  upon  the  most  unstable  of  founda- 
tions. Suppose  an  easement  is  enjoyed,  say,  for  thirty  years.  If 
after  such  continuance  of  enjoyment  the  right  may  be  overthrown  by 
proof  of  protests  and  mere  denials  of  the  right,  uttered  at  some  remote 
but  serviceable  time  during  that  period,  it  is  manifest  that  a  right 
held  by  so  uncertain  a  tenure  will  be  of  little  value.  If  the  easement 
has  been  interrupted  by  any  act  which  places  the  owner  of  it  in  a  posi- 
tion to  sue  and  settle  his  right,  if  he  chooses  to  postpone  its  vindication 
until  witnesses  are  dead  or  the  facts  have  faded  from  recollection, 
he  has  his  own  folly  and  supineness  to  which  to  lay  the  blame.  But 
if,  by  mere  protests  and  denials  by  his  adversary,  his  right  might  be 
defeated,  he  would  be  placed  at  an  unconscionable  disadvantage.  He 
could  neither  sue  and  establish  his  right,  nor  could  he  have  the  ad- 
vantage usually  derived  from  long  enjoyment  in  quieting  titles. 

Protests  and  remonstrances  by  the  owner  of  the  servient  tenement 
against  the  use  of  the  easement,  rather  add  to  the  strength  of  the  claim 
of  a  prescriptive  right;  for  a  holding  in  defiance  of  such  expostula- 
tions is  demonstrative  proof  that  the  enjoyment  is  under  a  claim  of 
right,  hostile  and  adverse;  and  if  they  be  not  accompanied  by  acts 
amounting  to  a  disturbance  of  the  right  in  a  legal  sense,  they  are  no 
interruptions  or  obstructions  of  the  enjoyment. 

The  instructions  of  the  judge  were  erroneous  in  this  respect.  The 
jury  should  have  been  told  that  a  continuous  enjoyment  under  a  claim 
of  right  for  twenty  years,  not  obstructed  by  some  suable  act,  and 
having  the  other  qualities  of  an  adverse  user,  confers  an  indefeasible 
right.  It  is  said  that  the  instruction  was  given  in  view  of  evidence 
tending  to  show  interruptions  in  fact  of  the  right,  and  therefore 
the  error  was  harmless.  As  the  judgment  will  be  reversed  on  oth.er 
grounds,  and  the  case  may  be  retried,  we  prefer  not  to  discuss  the 
evidence  at  this  time.     *     *     *  ^^ 


11  It  is  generally  held  in  this  country  that,  In  analogy  to  the  statute  of  lim- 
itations, which  applies  only  to  corporeal  lioreditaineuts,  continuous,  exclusive, 
and  hostile  use  of  an  incorporeal  hereditament  for  a  period  equal  to  the  stat- 
ute of  limitations  will  amount  to  a  presumption  of  a  grant.  Clay  v.  Penzel, 
79  Ark.  5,  11,  94  S.  W.  705  (1906)  ;  Fleming  v.  Howard,  150  Cal.  28,  30,  87 
Pac.  90S  (1906);  Null  v.  Williamson.  1(50  Ind.  .5.37,  544.  78  N.  E.  70  (1900); 
Bean  v.  Bean,  163  Mich.  379,  128  N.  W.  413  (1910)  ;   House  v.  Montgomery,  1£ 


PARTICDLAK    EASEMENTS  389 

III.  Particular  Easements" 
1.  Rights  of  Way 


See  Hildreth  v.  Googins,  ante,  p.  378. 


2.  Light  and  Air 


DARNELL  v.  COLUMBUS  SHOW  CASE  CO. 

(Supreme  Court  of  Georgia,  1907.     129  Ga.  62,  58  S.  E.  631,  13  L.  R.  A. 
[N.  S.]  333,  121  Am.  St.  Rep.  206.) 

Error  from  Superior  Court,  Muscogee  County ;  W.  A.  Little,  Judge. 

Action  by  S.  W.  Darnell  against  the  Columbus  Show  Case  Company. 
Judgment  for  defendant,  and  plaintiff  brings  error.     Reversed. 

Evans,  J.  The  case  made  by  the  petition  was  substantially  this : 
The  owner  of  two  adjoining  lots  leased  them  separately  to  the  plain- 
tiff and  the  defendant ;  the  lease  to  the  plaintiff  being  prior  to  that  of 
the  defendant.  Upon  the  lot  demised  to  the  plaintiff  was  a  three-room 
tenement,  which  was  used  as  a  dwelling  house.  The  only  means  of 
lighting  and  ventilating  two  rooms  thereof  was  by  a  single  window  in 
each  room,  which  overlooked  the  premises  demised  to  the  defendant. 
The  defendant,  being  a  manufacturing  corporation  dealing  in  lumber, 
piled  a  quantity  of  lumb*  on  the  lot  rented  by  it  in  such  a  manner 
as  to  obstruct  the  light  and  air  necessary  for  the  use  and  enjoyment 
of  the  tenement  by  the  other  tenant,  and  to  cause  rainwater  to  drip 
into  the  house,  rendering  the  house  damp,  unwholesome,  unhealthy, 
and  uncomfortable.  Other  matters  were  also  alleged,  which  will  be 
noticed  in  a  discussion  of  the  special  demurrers  filed.  The  defendant 
demurred  both  generally  and  specially  to  the  petition.  The  demurrers 
were  sustained,  and  the  petition  dismissed. 

The  complaining  tenant  was  a  tenant  by  the  year,  and  does  not  claim 
an  express  grant  to  an  easement  of  light  and  air.  Whatever  right  he 
may  have  to  prevent  his  neighbor  tenant  from  obstructing  his  window 
"miist  be  founded  upon  an  implied  grant  of  an  easement  in  the  use  and 
enjoyment  of  light  and  ventilation  over  the  adjoining  land  of  his  land- 
lord at  the  time  of  his  lease.  There  is  much  conflict  in  the  American 
cases  on  the  question  of  implied  grant  of  these  easements.     In  many 

Mo.  App.  170,  179  (1885)  ;    Hindley  v.  Manhattan  Ry.  Co.,  185  N.  Y.  833,  78 
N.  E.  276  (1906)  ;   Mason  v.  Yearwood,  58  Wash.  276,  108  Pac.  608,  30  L.  R.  A. 
(N.  S.)  1158  (1910).    And  see  14  Cyc.  1146,  citing  many  other  cases. 
12  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  173-179. 


390  EASEMENTS,    PROFITS   A   PRENDRE,    AND    RENTS 

jurisdictions  it  is  held  that  a  lease  of  land  upon  which  is  a  building  de- 
pending for  its  light  and  air  on  windows  therein,  which  overlook 
adjoining  land  of  the  landlord,  does  not  include  any  right  of  light  and 
air  through  such  windows,  unless  expressly  granted  in  the  lease. 
Myers  v.  Gemmel,  10  Barb.  (N.  Y.)  537;  Keiper  v.  Klein,  51  Ind.  316; 
Keating  v.  Springer,  146  111.  481,  34  N.  E.  805,  22  L.  R.  A.  544,  37 
Am.  St.  Rep.  175.  Other,  courts  lay  down  the  doctrine  that  there  is 
an  implied  grant  in  a  lease  of  the  right  to  light  and  air  from  the  adjoin- 
ing land  of  the  landlord,  where  the  situation  and  habitual  use  of  the 
demised  premises  is  such  that  the  right  to  light  and  air  is  necessary  to 
the  beneficial  enjoyment  of  the  leased  premises.  Case  v.  Minot,  158 
Mass.  577,  33  N.  E.  700,  22  L.  R.  A.  536.  See  note  to  this  case  in 
22  L.  R.  A.  536,  where  many  of  the  cases  are  collated. 

The  question  of  an  implied  grant  of  easement  of  light  and  air  was 
before  this  court  in  Turner  v.  Thompson,  58  Ga.  268,  24  Am.  Rep.  497. 
In  that  case  it  was  held  that  'Svhere  an  executrix  soldMialf  a  lot  of 
land,  with  a  tenement  thereon  having  windows  opening  upon  the  other 
half  lot,  and  bought  the  other  half  herself  at  the  same  sale,  she  will  be 
estopped  from  obstructing  the  passage  of  light  and  air  through  such 
windows,  if  those  windows  were  necessary  to  the  admission  of  suffi- 
cient light  and  air  for  the  reasonable  enjoyment  of  the  tenement  which 
she  sold;  aliter,  if  sufficient  light  and  air  can  be  derived  from  other 
windows  opened,  or  which  could  conveniently  be  opened,  elsewhere  in 
the  tenement  to  make  the  rooms  reasonably  useful  and  enjoyable." 
The  principle  deduced  from  this  decision  has  been  incorporated  in 
Civ.  Code  1895,  §  3046,  as  follows:  "A  right  to  the  easement  of 
light  and  air  over  another's  land  through  ancient  lights  or  windows 
is  not  acquired  by  prescription ;  but  where  one  sells  a  house,  the  light 
necessary  for  the  reasonable  enjoyment  whereof  is  derived  from  and 
across  adjoining  land  then  belonging  to  the  same  owner,  the  ease- 
ment of  light  and  air  over  such  vacant  lot  passes  as  an  incident  to  the 
house  sold,  because  necessary  to  the  enjoyment  thereof." 

The  principle  here  stated  is  equally  applicable  to  a  case  where  the 
owner  of  two  adjoining  lots  leases  one  upon  which  there  is  a  dwelling 
house  dependable  upon  a  window  overlooking  the  adjoining  lot  for 
light  and  air.  Indeed,  the  reason  for  the  rule  is  more  cogent  in  a  case 
of  tenancy  than  of  purchase.  Where  one  purchases  a  tenement  de- 
pending for  light  and  air  upon  a  window  overlooking  the  adjoining 
land  belonging  to  his  grantor,  in  order  to  prevent  closing  the  window, 
he  must  show  that  he  cannot  get  light  and  air  elsewhere  over  his  own 
land ;  that  it  is  a  real  necessity  that  he  get  it  at  this  easement ;  that  he 
cannot  get  other  lights  to  his  own  building  over  his  own  property  at  a 
reasonable  cost.  Thompson  v.  Turner,  69  Ga.  223.  A  tenant,  without 
his  landlord's  consent,  cannot  change  and  alter  the  demised  tenement 
in  any  material  respect.  Certainly  he  is  under  no  duty  to  alter  the  de- 
mised tenement  to  meet  any  exigency  produced  by  the  act  of  his  land- 
lord to  escape  its  consequences.     The  tenant  is  entitled  to  the  use  of 


PARTICULAE   EASEMENTS 


391 


the  tenement  with  such  necessary  privileges  accruing  from  its  situation 
to  adjoining  land  of  his  landlord  at  the  time  of  the  demise,  and  the 
landlord  cannot  deprive  him  of  the  enjoyment  thereof  by  changing  the 
situation  in  such  a  material  way  as  practically  to  make  the  tenement 
unfit  for  use. 

We  have  thus  far  discussed  the  matter  as  if  the  complaint  of  the 
tenant  were  against  his  landlord,  instead  of  against  a  tenant  wdio 
subsequently  rented  from  his  landlord.  It  is  not  charged  in  the  peti- 
tion that  the  common  landlord  consented,  expressly  or  impliedly,  to 
the  comrnission  of  the  acts  complained  of,  nor  connived  thereat.  From 
the  doctrine  that  a  landlord  is  not  responsible  for  the  acts  of  strangers, 
it  would  follow  that  a  tortious  act  done  by  one  tenant  to  another  tenant 
of  a  common  landlord,  without  the  authority,  consent,  or  connivance 
of  the  landlord,  is  not  the  latter's  tort,  but  the  tort  of  him  who  does 
the  act.  Perry  v.  Wall,  68  Ga.  70.  However,  if  the  common  landlord 
cannot  use  his  adjoining  land  in  such  a  manner  as  to  shut  out  neces- 
sary light  and  air  from  a  dwelling  house  which  he  has  rented,  one  who 
thereafter  rents  the  adjoining  land  has  no  greater  right  or  privilege 
in  respect  thereto  than  his  landlord  possessed.  It  follows,  therefore, 
that  the  defendant  cannot  justify  its  act  under  the  lease. 

The  petition  should  not  have  been  dismissed  on  general  demurrer  for 
another  reason.  It  was  alleged  that  the  lumber  was  piled  in  such  a 
way  as  to  cause  the  rainwater  to  be  thrown  through  the  window  of 
the  plaintiff's  bedroom,  "thereby  wetting  petitioner's  bedroom  floor 
and  his  bedding  and  bedroom  furnishings,  and  rendering  petitioner's 
said  house  and  bedroom  especially  damp,  close,  stuffy,  unwholesome, 
and  unhealthy,  and  exceedingly  uncomfortable,  to  his  great  annoyance, 
'  and  to  the  disturbance  and  violation  of  his  right  to  the  full,  free,  com- 
fortable, and  reasonable  enjoyment  of  his  said  dwelling  house  and 
home."  Here  is  charged  a  distinct  physical  invasion  and  interference 
with  the  plaintiff's  possession,  which  is  a  positive  tort.  Although  a 
tenant  has  no  estate  in  the  land,  he  is  the  owner  of  its  use  for  the  term 
of  his  rent  contract,  and  can  recover  damages  for  any  injury  to  such 
use  resulting  from  a  physical  invasion  of  his  possession.  See  Bentley 
V.  Atlanta,  92  Ga.  623,  18  S.  E.  1013. 

There  were  several  special  demurrers  to  the  petition.  One  was 
directed  to  the  allegations  respecting  the  plaintift"'s  condition  in  life, 
■  and  the  nature  of  his  vocation.  Simply  that  the  plaintiff  is  a  poor  man, 
and  his  employment  is  that  of  a  night  watchman,  which  requires  him 
to  sleep  in  the  day,  would  not  make  the  defendant  liable  in  damages 
for  the  interference  of  his  slumbers  caused  by  the  noises  incident  to 
the  operation  of  a  lumber  yard.  Hence  the  sixteenth  and  twentieth 
paragraphs  were  subject  to  the  special  demurrers  aimed  at  them.  I'he 
allegations  that  the  plaintiff  had  previously  occupied  the  same  house  as 
a  tenant  for  many  years  in  the  past,  and  was  attached  to  the  same, 
was  entirely  irrelevant,  and  properly  stricken  on  demurrer. 

The  allegation  in  the  seventeenth  paragraph,  that  the  plaintiff  had 


o 


92         EASEMENTS,  PROFITS  A  PRENDRE,  AND  RENTS 


renewed  his  lease  for  another  term,  does  not  aid  his  case.  When  he 
renewed  the  lease,  he  took  the  premises  as  he  found  them,  and  cannot 
complain  of  conditions  existing  at  the  time  of  the  renewal  of  his  lease 
contract. 

The  twenty-second  paragraph  of  the  petition  declared  that  the  va- 
rious acts  and  deeds  set  forth  and  complained  of,  both  in  themselves 
and  in  the  intent  with  which  they  were  done,  constitute  aggravating 
circumstances  entitling  petitioner  to  additional  damages  for  which 
he  sues,  ^he  mere  wrongful  obstruction  of  the  plaintiff's  light,  with- 
out more,  would  not  make  the  defendant  liable  in  punitive  damages. 
But  if,  as  charged  in  the  petition,  the  lumber  was  piled  so  as  not  only 
to  exclude  light  and  air  from  the  plaintift"s  dwelling,  but  also  to  throw 
the  rainwater  into  his  bedroom,  and  this  was  done  by  the  defendant 
for  the  purpose  of  harassing  the  plaintiff  with  a  view  of  causing  him 
to  abandon  his  lease,  that  the  defendant  might  get  possession  of  the 
property,  it  would  be  in  the  province  of  the  jury  to  allow  punitive 
■damages. 

The  other  special  demurrers  to  which  no  special  reference  has  been 
made  should  have  been  overruled.  Judgment  reversed.  All  the  Jus- 
tices concur. 


IV.  Profits  a  Prendre  ^^ 


PIERCE  v.  KEATOR. 

(Court  of  Appeals  of  New  York,  1S77.     70  N.  Y.  419,  26  Am.  Rep.  612.) 

Action  of  trespass  for  cutting  wheat,  originally  brought  by  Ethan 
A.  Pierce,  plaintiff's  intestate,  who  sowed  the  wheat.  The  wheat  was 
taken  from  a  strip  of  land  formerly  part  of  a  farm  owned  by  Pierce, 
and  conveyed  by  him  to  the  New  York  and  Oswego  Midland  Railroad 
Company  in  fee,  with  the  following  reservation :  "Said  parties  of  the 
first  part  also  to  have  the  privilege  of  mowing  and  cultivating  the  sur- 
plus ground  of  said  strip  of  land  not  required  for  railroad  purposes." 
The  farm  was  subject  to  a  mortgage  which  was  afterward  foreclosed, 
and  Elijah  Wheeler  became  the  purchaser.  The  defendant  claims  un- 
der Wheeler's  title.  The  referee's  deed  to  Wheeler  embraced  the  en- 
tire farm  "excepting  and  reserving  however  from  the  above-described 
premises  the  following  described  premises,  viz."  (here  follows  a  de- 
scription of  the  strip  conveyed  to  the  railroad  company  by  metes  and 
bounds,  closing  as  follows) :  "Containing  six  acres  and  eighteen  one- 
hundredths  of  an  acre  of  land,  more  or  less,  which  is  reserved  as  con- 
veyed to  the  said  Oswego  and  Midland  Railroad  Company, 

Church,  C.  J.  It  is  important  to  determine  the  nature  of  the 
right  reserved  in  the  deed  of  Pierce  and  wife  to  the  New  York  and 

18  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  ISO. 


PROFITS   A  PRENDRE 


393 


Oswego  Midland  Railroad  Company,  The  reservation  is  in  the  follow- 
ing words:  "Said  parties  of  the  first  part  also  to  have  the  privilege 
of  mowing  and  cultivating  the  surplus  ground  of  said  strip  of  land  not 
required  for  railroad  purposes."  The  appellant  contends  that  this 
right  of  mowing  and  cultivating  was  an  easement  appurtenant  to  the 
remaining  portion  of  the  farm,  and  would  pass  to  the  grantee  of  the 
remainder  of  the  farm  without  description  or  specification.  The  term 
"easement"  has  sometimes  been  applied  to  rights  in  or  over  land  with- 
out strict  regard  to  the  recognized  distinctions  between  the  different 
kind  or  class  of  rights.  These  distinctions  may  be  impaired  and  even 
obliterated  by  the  circumstances  attending,  and  the  manner  of  their 
creation. 

An  easement  is  a  liberty,  privilege  or  advantage  in  land  without 
profit,  existing  distinct  from  the  ownership  of  the  soil.  The  essential 
qualities  of  easements  are :  First.  They  are  incorporeal.  Second, 
They  are  imposed  upon  corporeal  property.  Third.  They  confer  no 
fight  to  a  participation  in  the  profits  arising  from  such  property,  and, 
Fourth.  There  must  be  two  distinct  tenements,  the  dominant  to  which 
the  right  belongs,  and  the  servient  upon  which  the  obligation  rests. 
Bouv.  Diet.,  title  Easements;  Washb.  Easem.,  chap.  1,  §  1 ;  Wolfe  v. 
Frost,  4  Sandf.  Ch.  89. 

The  right  to  profits,  denominated  profit  a  prendre,  consists  of  a  right 
to  take  a  part  of  the  soil  or  produce  of  the  land,  in  which  there  is  a 
supposable  value.  It  is  in  its  nature  corporeal,  and  is  capable  of  de- 
livery, while  easements  are  not,  and  may  exist  independently  without 
connection  with  or  being  appendant  to  other  property.  2  Washb.  Real 
Prop.  26  (3d  Ed.)  276;  Post  v.  Pearsall,  22  Wend.  433.  The  right 
reserved  in  the  deed  of  Pierce  and  wife  was  a  right  to  profits  in  the 
land,  and  was  not  therefore  in  strictness  an  easement.  From  the  na- 
ture of  the  right,  we  can  see  no  connection  between  it  and  the  owner- 
ship of  the  farm.  The  right  to  mow  and  cultivate  this  strip  was  in  no 
way  necessary  to,  or  even  useful  to  the  remainder  of  the  farm,  and 
it  was  not  therefore  appurtenant.  It  might  have  been  regarded  in  the 
nature  of  an  easement  if  the  reservation  had  been  made  to  Pierce,  as 
owner  of  the  farm,  or  on  account  of  being  the  owner,  but  the  language 
reserves  the  right  to  the  parties  of  the  first  part,  not  to  their  heirs  and 
assigns,  nor  to  the  owners  of  the  farm,  nor  for  the  benefit  of  the 
farm  or  such  owners.  As  the  terms  of  the  reservation  indicate  a  per- 
sonal privilege,  and  as  there  is  nothing  in  the  nature  of  the  right  re- 
served connecting  it  in  any  manner  with  the  ownership  or  use  of  the 
remainder  of  the  farm,  there  seems  no  alternative  but  to  apply  the 
established  rules  and  recognized  legal  distinctions  to  the  transaction. 
Chancellor  Walworth,  in  22  Wend.,  supra,  said:  "For  a  profit  a 
prendre  in  the  land  of  another,  when  not  granted  in  favor  of  some 
dominant  tenement,  cannot  be  said  to  be  an  easement,  but  an  interest 
or  estate  in  the  land  itself." 


394  EASEMENTS,    PROFITS    A    PRENDRE,    AND    RENTS 

I 

The  counsel  for  the  appellant  cited  also  from  Washburn  on  Ease- 
ments a  general  rule,  expressed  as  follows :  "This  right  of  profit  a 
prendre,  if  enjoyed  by  reason  of  holding  certain  other  estate,  is  re- 
garded in  the  light  of  an  easement  appurtenant  to  an  estate ;  whereas, 
if  it  belongs  to  an  individual,  distinct  from  any  ownership  of  other 
lands,  it  takes  the  character  of  an  interest  or  estate  in  the  land  itself, 
rather  than  that  of  a  proper  easement  in  or  out  of  the  same." 

The  qualifications  mentioned  in  these  citations  do  not  apply  to  the 
case  at  bar,  for  the  reason  before  stated,  that  neither  from  the  nature 
of  the  right,  nor  the  terms  of  the  grant,  can  it  be  affirmed  that  the 
right  was  enjoyed  by  reason  of  holding  the  farm,  or  on  account  of  the 
estate.  It  is  not  like  the  case  of  a  grant  of  land,  with  the  right  to 
take  wood  from  other  land  for  the  benefit  of  the  estate  granted. 
Washb.  Easem.  8;  see  also  Hill  v.  Lord,  48  Me.  83;  Grimstead  v.  Mar- 
lowe, 4  T.  R.  717. 

It  may  be 'inferred  that  the  right  reserved  entered  into  the  considera- 
tion for  the  conveyance  of  Pierce  to  the  railroad  company,  but  the  case 
is  destitute  of  any  circumstance  tending  to  establish  an  intention  to 
affix  the  right  as  appurtenant  to  the  remainder  of  the  farm.  The  con- 
tiguous rights  secured  by  the  deed  do  not  change  the  character  of 
this.  They  are  from  their  nature,  appurtenant  to  the  farm,  and  pre- 
sumptively necessary  to  its  enjoyment.  This  necessarily  disposes  of 
the  defendant's  claim  of  title  to  the  wheat,  through  the  title  to  this 
right  obtained  by  the  deed  given  upon  the  foreclosure. 

The  strip  of  land  conveyed  by  Pierce  to  the  railroad  company  was 
excepted  and  reserved  from  the  referee's  deed,  and  was  not  intended 
to  be  conveyed ;  and  if  the  words,  "as  conveyed,"  were  intended  as  an 
adoption  of  the  terms  of  the  deed  by  Pierce  to  the  railroad  company, 
yet  the  defendant  would  take  nothing  by  the  reservation  to  mow  and 
cultivate,  because,  as  we  have  seen,  it  was  a  reservation  in  favor  of 
Pierce  and  wife  personally,  and  would  terminate  upon  the  death  of 
either.  The  uncertain  character  of  this  right  to  mow  and  cultivate, 
as  reserved  in  the  deed  of  Pierce,  is  significant  also  of  an  intention 
not  to  fasten  it,  as  an  enduring  easement,  to  the  remainder  of  the  farm. 
The  use  of  the  strip  for  railroad  purposes  would  operate  to  suspend 
or  terminate  the  right  at  any  time,  and  the  railroad  company  would 
have  the  right  at  any  time  to  determine  the  necessity  of  its  use  for 
such  purposes,  and  hence  the  right  is  practically  revocable  at  pleasure, 
and  scarcely  rises  above  the  dignity  of  a  personal  license. 

We  concur  with  the  views  expressed  at  Special  and  General  Term, 
and  it  is  unnecessary  to  elaborate  them.  The  judgment  must  be  af- 
firmed.^* All  concur,  except  Eaul,  J.,  dissenting,  and  Ai^Li^x,  J.,  ab- 
sent. 

Judgment  affirmed. 

1*  Distinguished:  Bennett  v.  Culver,  27  Hun,  .55fi.  The  right  to  take  a  part 
of  the  soil  or  produce  of  land,  known  as  profit  i  prendre,  requires  a  grant  or 


RENTS  395 

V.  Rents  ^"^ 
1.  Rent  Chargie; 


CHURCH  V.  SEELEY.^« 

(Court  of  Appeals  of  New  York,  18SS.    110  N.  Y.  457,  18  N.  E.  117.) 

Appeal  from  supreme  court,  general  term,  Third  department. 

Ejectment  by  Walter  S.  Church  against  John  T.  Seeley.  Plaintiff  is 
the  owner  of  the  rents  reserved  on  two  of  the  Van  Rensselaer  leases. 
He  recovered,  in  1881  and  1882,  by  actions  of  ejectment,  the  greater 
part  of  the  land,  took  possession,  and  the  time  for  redemption  has 
expired.  The  total  amount  of  rent  due  on  the  entire  tracts  was  $7,- 
954.26,  while  on  the  portions  held  by  defendant  as  assignee  the  amount 
due  was  found  by  the  referee  to  be  $761.11,  and  this  amount  was  stat- 
ed in  the  judgment  for  plaintiff,  from  which  he  appeals.  Code  Civil 
Proc.  N.  Y.  §§  1504,  1505,  1507,  1516,  provide  that  upon  a  grant  re- 
serving rent,  where  six  months'  rent  shall  be  in  arrear,  and  the  grantor 
has  the  right  to  re-enter  for  non-payment,  he  may,  without  re-entry 
or  demand,  recover  the  premises  by  action.  In  case  such  right  of  re- 
entry is  reserved  upon  default  of  goods  sufficient  to  make  the  rent  by 
distress,  such  action  must  be  preceded  by  written  notice  of  intention 
to  re-enter.  In  such  an  action  the  rent  due  and  in  arrear  must  be 
fixed  and  stated  in  the  judgment,  if  one  be  rendered.  Where,  in  such 
action,  there  are  more  than  one  defendant,  and  they  hold  distinct  par- 
cels in  severalty,  the  action  may  be  divided  into  separate  actions,  and 
separate  judgments  rendered  in  each  case. 

Finch,  J.  We  agree  with  the  general  term  in  the  result  which  it 
adjudged,  and  should  adopt  its  opinion  but  for  its  discussion  of  a  sub- 
ject not  necessarily  involved  in  the  case,  and  the  soundness  or  un- 
soundness of  which  we  ought  not  to  determine  in  the  present  action. 
That  opinion  intimates  that  the  effect  of  plaintiff's  successful  re-entry 
upon  a  part  of  the  premises  leased  in  fee  may  be  to  extinguish  the  rent 
upon  the  remainder.  The  defendant,  however,  makes  no  such  claim, 
but  concedes  the  plaintiff's  right  to  re-enter  upon  such  remainder  for 
rent  in  arrear,  and  the  whole  controversy  is  simply  what  amount  of 
such  rent  should  be  stated  in  the  judgment  as  the  basis  of  a  possible 
redemption.  The  controversy  therefore,  proceeds  upon  the  assumption 
that  there  is  rent  in  arrear  which  should  be  stated  in  the  judgment, 

prescription  from  which  a  grant  may  be  presumed.  Taylor  v.  Millard,  US 
N.  Y.  251,  23  N.  E.  .376,  6  L.  R.  A.  667:  2  Wash.  Real  Prop.  276,  33S;  Rapalje 
&  Lawrence  Law  Diet,  title  Profit.  See  also  Huntington  v.  Asher,  96  N.  Y. 
610,  48  Am.  Rep.  652. 

15  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  181. 

18  Affirming  39  Hun,  269. 


39G         EASEMENTS,  PROFITS  A.  PRENDRE,  AND  RENTS 

and  that  the  amount  is  either  the  whole  unpaid  rent,  treating  the  lease 
as  an  entirety,  or  the  proportionate  share  of  the  60  acres  and  of  the 
10  acres  treating  the  rent  as  having  been  apportioned. 

These  manor  leases  have  been  held  to  create  a  rent-charge  rather 
than  a  rent-service,  and  while  at  common  law  it  was  said  that  a  rent- 
charge  could  not  be  apportioned  because  it  issued  out  of  the  whole 
land,  we  have  held  that  such  an  apportionment  is  possible  by  the  con- 
curring assent  or  action  of  both  the  landlord  and  the  tenant.  Van 
Rensselaer  v.  Hays,  19  N.  Y.  76,  75  Am.  Dec.  278 ;  Van  Rensselaer  v. 
Chadwick,  22  N.  Y.  34,  35.  And  so,  the  possibility  existing,  we  are 
concerned  only  with  the  facts  which  are  claimed  to  have  effected  an 
apportionment.  The  plaintiff  recovered  in  ejectment  100  acres  of  lot 
378,  which  contained  the  60  acres  additional  involved  in  this  action, 
as  held  under  the  lease  to  Martin  Tubbs,  and  the  day  of  redemption 
has  passed.  In  like  manner  he  recovered  and  holds  the  whole  of  lot 
402,  except  the  10  acres  owned  by  the  defendant  under  the  lease  to 
Abbott  &  Russ,  and  which  10  acres,  with  the  60,  constitute  the  lands  in 
controversy. 

The  opinion  of  the  general  term  points  out  very  clearly  the  injustice 
of  a  rule  which  would  permit  a  lessor  in  fee  to  have  the  bulk  of  the 
land,  and  at  the  same  time  all  the  rent  in  arrear,  and  suggests  adequate 
reasons  in  support  of  a  different  result.  The  severance  of  the  lease  by 
the  landlord  in  the  pursuit  of  his  remedy  was  preceded  by  long  con- 
tinued payments  by  the  owners  of  the  parcels  in  controversy  measured 
by  the  proportion  which  their  holdings  bore  to  the  full  quantity  of  the 
two  lots,  and  this  had  continued  for  many  years.  These  pro  rata  pay- 
ments were  accepted  by  the  lessor,  and  although  credited,  as  is  said 
upon  the  whole  lease,  as  an  entirety,  do  not  appear  to  have  been  ac- 
cepted upon  that  condition.  And  when  that  long  course  of  dealing  is 
followed  by  a  re-entry  upon  a  part  of  the  land,  leaving  the  defendant 
undisturbed  in  the  possession  of  his  70  acres,  it  would  seem  as  if  a  sev- 
erance of  the  rent  by  the  act  and  assent  of  the  landlord  was  a  reason- 
able and  just  inference.  But  beyond  that  the  application  and  opera- 
tion of  the  common  law  has  been  seriously  affected  by  the  statutory 
provisions  for  redemption,  and  those  which  seem  to  place  it  in  the  pow- 
er of  occupants  of  separate  parcels  to  compel  a  severance  of  the  ac- 
tion when  the  remedy  sought  is  ejectment.  It  does  not  here  appear 
that  the  severance  relied  upon  was  by  compulsion,  and  against  the  will 
of  the  lessor,  (Code  Civil  Proc.  §§  1504.  1505,  1507,  1516;)  and  treat- 
ing it  as  voluntary,  and  in  connection  with  the  actual  apportionment 
made  and  accepted,  we  think  we  are  justified  in  affirming  the  judg- 
ment, without  for  the  present  going  beyond  the  facts  before  us. 

The  judgment  should  be  affirmed,  with  costs.  All  concur,  except 
Peckham,  J.,  not  sitting. 


EENTS  397 


2.  Ground  Re;nts 


In  re  WHITE'S  ESTATE. 
(Supreme  Court  of  Pennsylvania,  1895.     167  Pa.  206,  31  Atl.  569.) 

Appeal  from  orphans'  court,  Franklin  county. 

Petition  by  Thomas  Dallas  and  another  for  the  partition  of  ground 
rents  belonging  to  the  estate  of  John  White,  deceased.  The  prayer 
of  the  petition  was  granted,  and  Martha  White,  widow  of  deceased, 
appeals.     Affirmed. 

The  following  is  the  opinion  of  the  orphans'  court : 

"By  a  rule  of  property  early  established  and  consistently  followed, 
ground  rents  in  Pennsylvania  are  regarded  as  real  estate.  This  rule 
was  first  declared  in  Ingersoll  v.  Sergeant,  1  Whart.  350,  and  it  has 
been  adhered  to  in  all  subsequent  adjudications  with  respect  to  this 
species  of  property  without  any  departure  or  variation.  These  adjudi- 
cations were  with  reference  to  ground  rents  differing  from  those  now 
under  consideration  in  but  a  single  particular.  By  the  terms  of  the  in- 
struments under  which  these  earlier  rents  were  created,  the  grantee 
had  the  right  to  extinguish  them  by  paying  the  grantor  the  capitalized 
sum  of  the  annual  charge  upon  a  day  certain  or  within  a  fixed  period. 
His  failure  to  exercise  this  right  made  the  rent  irredeemable  thereafter. 
The  rents  in  the  present  case  are  payable  in  half-yearly  payments  'in 
every  year  hereafter,  forever,'  but  are  redeemable  by  the  grantee  'at 
any  time  hereafter'  by  payment  of  the  principal  sum.  Under  this  cove- 
nant the  grantee  can  never  be  in  default  with  respect  to  such  payment, 
for  it  remains  optional  with  him  to  make  it;  and  hence,  though  by  its 
terms  it  runs  forever,  it  is  yet  a  redeemable  rent,  and  not  repugnant 
to  our  recent  legislation  forbidding  perpetual  or  redeemable  rents. 

"It  is  urged  by  those  who  oppose  this  proceeding  on  behalf  of  the 
widow  of  the  decedent  that  this  difference,  however,  is  so  radical,  that 
it  changes  the  character  of  the  estate  in  the  rent ;  that  when  redeemable 
it  is  not  realty,  but  personalty, — a  debt  charged  on  the  land.  A  sufficient 
answer  to  this  is  found  in  the  fact  that  ^he  circumstance  of  these  rents 
being  or  becoming  irredeemable  did  not  contribute  in  the  least  to  fixing 
their  character  as  real  property.  What  determined  that  was  the  con- 
clusion reached  by  the  court  that  they  were  a  rent  service,  as  distin- 
guished from  a  rent  charge.  That  they  were  the  subject  of  an  estate 
of  inheritance  resulted  necessarily  from  this  decision.  And  this  es- 
tate is  not  changed  by  the  fact  that  it  is  subject  to  be  redeemed  at 
the  option  of  the  grantee  of  the  land,  any  more  than  real  estate  ceases 
to  be  real  estate  when  its  owner  contracts  to  give  another  the  option 
of  the  purchase.  Indeed,  such  a  contract  will  illustrate  this  case  with 
respect  to  that  feature  of  it  we  are  asked  to  consider.  The  real  es- 
tate which  is  the  subject  of  the  option  remains  real  estate  until  the 


398  EASEMENTS,    PROFITS    A    PRENDRE,    AND    RENTS 

option  is  exercised.  The  rule  as  stated  by  Pomeroy  in  his  Equity  Ju- 
nsprudence  (volume  3,  p.  132)  is  'that  m  contracts  of  sale  upon  the 
purchaser's  option  the  question  whether  or  not  a  conversion  is  effected 
at  all  cannot,  of  course,  be  determined  until  the  purchaser  exercises 
his  option ;  but  the  moment  when  he  does  exercise  it  the  conversion 
as  between  the  parties  claiming  title  under  the  vendor  relates  back  to 
the  time  of  the  execution  of  the  contract.'  It  is  discussed  at  length  in 
Kerr  v.  Day,  14  Pa.  112,  53  Am.  Dec.  526,  and  there  unqualifiedly  ap- 
plied. What  we  are  called  upon  to  decide  is  the  present  character  of 
these  rents..  The  grantor  is  dead,  intestate  as  to  them.  The  grantee, 
as  yet,  has  not  exercised  his  option  of  purchase.  They  continue  real 
estate,  for  purposes  of  descent,  until  he  does.  What  they  may  be- 
come by  payment  of  principal  hereafter  it  is  not  necessary  now  to 
inquire.     Sufficient  unto  the  day. 

"And  now,  23d  April,  1894,  rule  absolute:  Inquest  awarded." 
Per  Curiam.  The  learned  president  of  the  orphans'  court  rightly 
held  that  for  the  purpose  of  distribution  the  ground  rents  in  question 
must  be  treated  as  realty,  and  therefore  subjects  of  partition.  It  is 
not  our  purpose,  nor  is  it  at  all  necessary,  to  add  anything  to  what 
has  been  so  well  said  by  him  in  support  of  that  position.  On  his  opin- 
ion the  decree  is  affirmed,  and  appeal  dismissed,  with  costs  to  be  paid 
by  appellant. 


PART  III 

MORTGAGES  AND  OTHER  LIENS  UPON 
REAL  PROPERTY 


MORTGAGES 

(A)  Genera!  Principles 

I.  Nature  and  Definition  of  a  Mortgage  * 


BARRETT  v.  HINKLEY. 
(Supreme  Court  of  Illinois,  1888.     124  III.  32,  14  N.  E.  863,  7  Am.  St.  Rep.  331.) 

Appeal  from  superior  court,  Cook  county ;  J.  E.  Gary,  Judge. 

Watson  S.  Hinkley,  plaintiff,  sued  George  D.  Barrett,  Adalina  S. 
Barrett,  and  William  H.  Whitehead,  impleaded  with  others,  defend- 
ants, in  ejectment.  Judgment  for  plaintiff',  and  the  above-mentioned 
defendants  appealed. 

MuLKEY,  J.^  Watson  S.  Hinkley,  claiming  to  be  the  owner  in  fee 
of  the  land  in  controversy,  on  the  twenty-sixth  day  of  February,  1885, 
brought  an  action  of  ejectment  in  the  superior  court  of  Cook  county 
against  the  appellants,  George  D.  Barrett,  Adalina  S.  Barrett,  William 
H.  Whitehead,  and  others,  to  recover  the  possession  thereof.  There 
was  a  trial  of  the  cause  before  the  court  without  a  jury,  resulting  in  a 
finding  and  judgment  for  the  plaintiff,  and  the  defendants  appealed. 
The  evidence  tends  to  show  the  following  state  of  facts:  In  1870, 
Thomas  Kearns  was  in  possession  of  the  land,  claiming  to  own  it  in 
fee-simple.  On  August  3d  of  that  year  he  sold  and  conveyed  it  to 
William  H.  W.  Cushman  for  the  sum  of  $80,000.  Cushman  gave  his 
four  notes  to  Kearns  for  balance  of  purchase  money, — one  for  $12,500, 
maturing  in  30  days;  three  for  $16,875  each,  maturing,  respectively, 
in  two,  three,  and  four  years  after  date, — and  all  secured  by  a  mort- 
gage on  the  premises.  The  notes  seem  to  have  all  been  paid  but  the 
last  one.  In  1878,  Kearns  died,  and  his  widow,  Alice  Kearns,  ad- 
ministered on  his  estate.  Previous  to  his  death,  however,  he  had  hy- 
pothecated the  mortgage  and  last  note  to  secure  a  loan  from  Greene- 
baum.  Subsequently,  and  before  the  commencement  of  the  present 
suit,  Greenebaum,  in  his  own  right,  and  Mrs.  Kearns,  as  administratrix 
of  her  husband,  for  value,  sold  and  assigned  by  a  separate  instrument 
in  writing  the  mortgage  and  note  to  the  appellee,  Watson  S.  Hinkley. 

1  For  discussion  of  principles,  see  Burdiek,  Real  Prop.  §  184. 

2  Part  of  the  opiniou  is  omitted. 

(399) 


400  MORTGAGES 

This  is  in  substance  the  case  made  by  plaintiff.  The  defendants  show- 
ed no  title  in  themselves  or  any  one  else.  The  conclusion  to  be  reach- 
ed, therefore,  depends  upon  whether  the  case  made  by  the  plaintiff 
warranted  the  court  below  in  rendering  the  judgment  it  did.  *  *  * 
Thomas  Kearns  was  the  owner  of  this  property  in  fee.  He  conveyed 
it  in  fee  to  Cushman.  The  latter,  as  a  part  of  the  same  transaction, 
reconveyed  it  by  way  of  mortgage  to  Kearns.  By  reason  of  this  last 
conveyance  Kearns  became  mortgagee  of  the  property,  and  Cushman 
mortgagor.  According  to  the  English  doctrine,  and  that  of  some  of 
the  states  of  the  Union,  including  our  own,  Kearns,  at  least  as  between 
the  parties,  took  the  legal  estate,  and  Cushman  the  equitable.  Accord- 
ing to  other  authorities,  Kearns,  by  virue  of  Cushman's  mortgage  to 
him,  took  merely  a  lien  upon  the  property  to  secure  the  mortgage  in- 
debtedness, and  the  legal  title  remained  in  Cushman.  For  the  pur- 
poses of  the  present  inquiry,  it  is  not  important  to  consider  just  now, 
if  at  all,  which  is  the  better  or  true  theory.  It  is  manifest,  and  must 
be  conceded,  that  the  legal  estate  in  the  land,  after  the  execution  of  the 
mortgage,  was  either  in  the  mortgagee  or  mortgagor,  or  in  both  com- 
bined. Such  being  the  case,  it  is  equally  clear  appellee,  to  succeed, 
must  have  deduced  title  through  one  or  both  of  these  parties.  This 
could  only  have  been  done  by  showing  that  the  legal  title  had,  by  means 
of  some  of  the  legally  recognized  modes  of  conveying  real  property, 
passed  from  one  or  both  of  them  to  himself.  This  he  did  not  do,  or 
attempt  to  do ;  indeed,  he  does  not  claim  through  them,  nor  either  of 
them.  Not  only  so;  neither  Mrs.  Kearns  nor  Greenebaum,  through 
whom  appellee  does  claim,  derives  title  through  any  deed  or  convey- 
ance executed  by  either  the  mortgagor  or  mortgagee ;  nor  does  either 
of  them  claim  as  heir  or  devisee  of  the  mortgagor  or  mortgagee. 

As  the  assignment  of  the  note  and  mortgage  to  appellee  did  not,  as 
we  hold,  transfer  or  otherwise  affect  the  legal  title  to  the  land,  it  may 
be  asked,  what  eft'ect,  then,  did  it  have?  This  question,  like  most 
others  pertaining  to  the  law  of  mortgages,  admits  of  two  answers,  de- 
pending upon  whether  the  rules  and  principles  which  prevail  in  courts 
of  equity  or  of  law  are  to  be  applied.  If  the  latter,  we  "would  say 
none ;  because,  as  to  the  note,  that  could  not  be  assigned  by  a  separate 
instrument,  as  was  done  in  this  case,  so  as  to  pass  the  legal  title.  Ryan 
v.  May,  14  111.  49;  Fortier  v.  Darst,  31  111.  213;  Chickering  v.  Ray- 
mond, 15  111.  362.  As  to  the  mortgage,  it  is  well  settled  that  could  not 
be  assigned  like  negotiable  paper,  so  as  to  pass  the  legal  title  in  the 
instrument,  or  clothe  the  assignee  with  the  immunity  of  an  innocent 
holder,  except  under  certain  circumstances  which  do  not  apply  hc];e. 
Railway  Co.  v.  Loewenthal,  93  111.  433;  Hamilton  v.  Lubukee,  51  111. 
415,  99  Am.  Dec.  562;  Olds  v.  Cummings,  31  111.  188;  Mclntire  v. 
Yates,  104  111.  491 ;  Fortier  v.  Darst,  31  111.  212.  But  that  the  mort- 
gagee, or  any  one  succeeding  to  his  title,  might,  by  deed  in  the  form  of 
an  assignment,  pass  to  the  assignee  the  legal  as  well  as  the  equitable 
interest  of  the  mortgagee,  we  have  no  doubt,  though  there  is  some  con- 


NATURE   AND   DEFINITION   OF   A   MORTGAGE  401 

flict  on  this  subject.  2  Washb.  Real  Prop.  115,  and  authorities  there 
cited.  Yet  tlie  assignors,  in  the  case  in  hand,  not  having  the  legaltitle, 
as  we  have  just  seen,  could  nqt^  bj  any  form  of  instrument,  transmit 
it  to  another.  If,  however,  the  rules  and  principles  which  obtain  in 
courts  of  equity  are  to  be  applied,  we  would  say  that,  by  virtue  of  the 
assignment,  the  appellee  became  the  equitable  owner  of  the  note  and 
mortgage,  and  that  it  gave  him  such  an  interest  or  equity  respecting  the 
land  as  entitled  him  to  have  it  sold  in  satisfaction  of  the  debt. 

There  is  perhaps  no  species  of  ownership  known  to  the  law  which 
is  more  complex,  or  which  has  given  rise  to  more  diversity  of  opin- 
ion, and  even  conflict  in  decisions,  than  that  which  has  sprung  from  the 
mortgage  of  real  property.  By  the  common  law,  if  the  mortgagor  paid 
the  money  at  the  time  specified  in  the  mortgage,  the  estate  of  the  mort- 
gagee, by  reason  of  the. performance  of  the  condition  therein,  at  once 
determined,  and  was  forever  gone,  and  the  mortgagor,  by  mere  opera- 
tion of  law,  was. remitted  to  his  former  estate.  On  the  other  hand,  if 
the  mortgagor  failed  to  pay  on  the  day  named,  the  title  of  the  mort- 
gagee became  absolute,  and  the  mortgagor  ceased  to  have  any  interest 
whatever  in  the  mortgaged  premises.  By  the  execution  of  the  mort- 
gage, the  entire  legal  estate  passed  to  the  mortgagee,  and,  unless  it 
was  expressly  provided  that  the  mortgagor  should  retain  possession 
till  default  in  payment,  the  mortgagee  might  maintain  ejectment  as 
well  before  as  after  default.  This  is  the  view  taken  by  the  common- 
law  courts  of  England,  and  which  has  obtained,  with  certain  limita- 
tions, in  most  of  the  states  of  the  Union,  including  our  own,  in  which 
the  common-law  system  prevails.  In  Carroll  v.  Ballance,  26  111.  9,  79 
Am.  Dec.  354,  which  was  ejectment  by  the  mortgagee  against  the  as- 
signee of  the  mortgagor,  to  recover  the  mortgaged  premises,  this  court 
thus  states  the  English  rule  on  the  subject:  "In  England,  and  in  many 
of  the  American  states,  it  is  understood  that  the  ordinary  mortgage 
deed  conveys  the  fee  in  the  land  to  the  mortgagee,  and  under  it  he 
may  oust  the  mortgagor  immediately  on  the  execution  and  delivery  of 
the  mortgage,  without  waiting  for  the  period  fixed  for  the  performance 
of  the  condition,  [citing  Coote,  Mortg.  339;  Blaney  v,  Bearce,  2 
Greenl.  (Me.)  132;  Brown  v.  Cram,  1  N.  H.  169;  Hobart  v.  Sanborn, 
13  N.  H.  226,  38  Am.  Dec.  483 ;  Paper-Mills  v.  Ames,  8  Mete.  (Mass.) 
1.]  And  this  right  is  fully  recognized  by  courts  of  equity,  although 
liable  to  be  defeated  at  any  moment  in  those  courts  by  the  payment  of 
the  debt."  Again,  in  Nelson  v.  Pinegar,  30  111.  481,  which  was  a  bill 
by  mortgagee  to  restrain  waste,  it  is  said :  "The  complainant,  as  mort- 
gagee of  the  land,  was  the  owner  in  fee,  as  against  the  mortgagor  and 
all  claiming  under  him.  He  had  the  jus  in  re,  as  well  as  ad  rem,  and 
being  so  is  entitled  to  all  the  rights  and  remedies  which  the  law  gives 
to  such  an  owner."  So,  in  Oldham  v.  Pflegar,  84  111.  102,  which  was 
ejectment  by  the  heirs  of  the  mortgagor  against  the  grantee  of  the 
mortgagor,  this  court,  in  holding  the  action  could  not  be  maintained, 
Bubd.Cas.Real  Prop. — 26 


402  MORTGAGES 

said:  "Under  the  rulings  of  this  court,  the  mortgagee  is  held,  as  in 
England,  in  law  the  owner  of  the  fee,  having  the  jus  in  re,  as  well  as 
the  jus  ad  rem."  In  Finlon  v.  Clark,  118  111.  32,  7  N.  E.  475,  the  same 
doctrine  is  announced,  and  the  cases,  above  cited  are  referred  to  with 
approval.    Taylor  v.  Adams,  115  111.  570,  4  N.  E.  837. 

Courts  of  equity,  however,  from  a  very  early  period,  took  a  widely 
different  view  of  the  matter.  They  looked  upon  the  forfeiture  of  the 
estate  at  law,  because  of  non-payment  on  the  very  day  fixed  by  the 
mortgage,  as  in  the  nature  of  a  penalty,  and,  as  in  other  cases  of  penal- 
ties, gave  relief  accordingly.  This  was  done  by  allowing  the  mort- 
gagor to  redeem  the  land  on  equitable  terms  at  any  time  before  the 
right  to  do  so  was  barred  by  foreclosure.  The  right  to  thus  redeem 
after  the  estate  had  become  absolute  at  law  in  the  mortgagee  was  call- 
ed the  "equity  of  redemption,"  and  has  continued  to  be  so  called  to  the 
present  time.  These  courts,  looking  at  the  substance  of  the  transac- 
tion, rather  than  its  form,  and  with  a  view  of  giving  effect  to  the  real 
intentions  of  the  parties,  held  that  the  mortgage  was  a  mere  security 
for  the  payment  of  the  debt ;  that  the  mortgagor  was  the  real  beneficial 
owner  of  the  land,  subject  to  the  incumbrance  of  the  mortgage ;  that 
the  interest  of  the  mortgagee  was  simply  a  lien  and  incumbrance  upon 
the  land,  rather  than  an  estate  in  it.  In  short,  the  positions  of  mort- 
gagor and  mortgagee  were  substantially  reversed  in  the  view  taken  by 
courts  of  equity. 

These  two  systems  grew  up  side  by  side,  and  were  maintained  for 
centuries  without  conflict  or  even  friction  between  the  law  and  equity 
tribunals  by  which  they  were  respectively  administered.  The  equity 
courts  did  not  attempt  to  control  the  law  courts,  or  even  question  the 
legal  doctrines  which  they  announced.  On  the  contrary,  their  force 
and  validity  were  often  recognized  in  the  relief  granted.  Thus,  equity 
courts,  in  allowing  a  redemption  after  a  forfeiture  of  the  legal  estate, 
uniformly  required  the  mortgagee  to  reconvey  to  the  mortgagor,  which 
was  of  course  necessary  to  make  his  title  available  in  a  court  of  law\ 
In  maintaining  these  two  systems  and  theories  in  England,  there  was 
none  of  that  confusion  and  conflict  which  we  encounter  in  the  deci- 
sions of  the  courts  of  this  country ;  resulting  chiefly,  from  a  failure  to 
keep  in  mind  the  distinction  between  courts  of  law  and  of  equity,  and 
the  rules  and  principles  applicable  to  them  respectively.  The  courts 
there,  by  observing  these  things,  kept  the  two  systems  intact,  and  in 
this  condition  they  were  transplanted  to  this  country,  and  became  a 
part  of  our  own  system  of  law. 

But  other  causes  have  contributed  to  destroy  that  certainty  and  uni- 
formity which  formerly  prevailed  with  us.  Chiefly  among  these  caus- 
es may  be  mentioned  the  statutory  changes  in  the  law  in  many  of  the 
states,  and  the  failure  of  the  courts  and  a'uthors  to  note  those  changes 
in  their  expositions  of  the  law  of  such  states.  Perhaps  another  fruit- 
ful source  of  confusion  on  this  subject  is  the  fact  that  in  many  of  the 
states  the  common-law  forms  of  action  have  been  abolished  by  statute, 


NATURE    AND    DEFINITION    OF    A    MORTGAGE  403 

and  instead  of  them  a  single  statutory  form  of  action  has  been  adopted, 
in  which  legal  and  equitable  rights  are  administered  at  the  same  time, 
and  by  the  same  tribunal.  Yet  the  distinction  between  legal  and  equita- 
ble rights  is  still  preserved,  so  that,  although  the  'action  in  theory  is 
one  at  law,  it  is  nevertheless  subject  to  be  defeated  by  a  purely  equi- 
table defense.  Under  the  influence  of  these  statutory  enactments  and 
radical  changes  in  legal  procedure,  by  which  legal  and  equitable  rights 
are  given  effect  and  enforced  in  the  same  .suit,  the  equitable  theory  of 
a  mortgage  has  in  many  of  these  states  entirely  superseded  the  legal 
one.  Thus,  in  New  York  it  is  said,  in  the  case  of  Trustees,  etc.,  v. 
Wheeler,  61  N.  Y.  88,  "that  a  mortgage  is  a  mere  chose  in  action.  It 
gives  no  legal  estate  in  the  land,  but  is  simply  a  lien  thereon ;  the  mort- 
gagor remaining  both  the  legal  and  equitable  owner  of  the  fee."  Fol- 
lowing this  doctrine  to  its  logical  results,  it  is  held  by  the  courts  of  that 
state  that  ejectment  under  the  Code  will  not  be  at  the  suit  of  the  mort- 
gagee against  the  owner  of  the  equity  of  redemption.  Murray  v. 
Walker,  31  N.  Y.  399.  In  strict  conformity  with  the  theory  that  the 
mortgagee  has  no  estate  in  the  land,  but  a  mere  lien  as  security  for  his 
debt,  the  courts  of  New  York,  and  others  taking  the  same  view,  hold 
that  a  conveyance  by  the  mortgagee  before  foreclosure,  without  an  as- 
signment of  the  debt,  is  in  law  a  nullity.  Jackson  v.  Bronson,  19  Johns. 
(N.  Y.)  325 ;  Wilson  v.  Troup,  2  Cow.  (N.  Y.)  231,  14  Am.  Dec.  458: 
Jackson  v.  Willard,  4  Johns.  (N.  Y.)  41.  And  this  court  seems  to  have 
recognized  the  same  rule  as  obtaining  in  this  state  in  Delano  v.  Ben- 
nett, 90  111.  533. 

The  New  York  cases  just  cited,  and  all  others  taking  the  same  view, 
are  clearly  inconsistent  with  the  whole  current  of  our  decisions  on  the 
subject,  as  is  abundantly  shown  by  the  authorities  already  cited.  The 
doctrine  would  seem  to  be  fundamental  that  if  one  sui  juris,  having 
the  legal  title  to  land,  intentionally  delivers  to  another  a  deed  therefor, 
containing  apt  words  of  conveyance,  the  title  at  law,  at  least,  will  pass 
to  the  grantee ;  but  for  what  purposes  or  uses  the  grantee  will  hold 
it,  or  to  what  extent  he  will  be  able  to  enforce  it,  will  depend  upon  cir- 
cumstances. If  the  mortgagee  conveys  the  land  without  assigning  the 
debt  to  the  grantee,  the  latter  would  hold  the  legal  title  as  trustee  for 
the  holder  of  the  mortgage  debt.  Sanger  v.  Bancroft,  12  Gray,  (Mass.) 
367;  Barnard  v.  Eaton,  2  Cush.  (Mass.)  304;  Jackson  v.  Willard,  4 
Johns.  (N.  Y.)  41.  It  is  true,  the  interest  which  passes  is  of  no  ap- 
preciable value  to  the  grantee.  Thus,  in  the  case  last  cited,  Chancellor 
Kent,  in  speaking  of  it,  says :  "The  mortgage  interest,  as  distinct  from 
the  debt,  is  not  a  fit  subject  of  assignment.  It  has  no  determinate 
value.  If  it  should  be  assigned,  the  assignee  must  hold  the  interest  at 
the  will  and  disposal  of  the  creditor  who  holds  the  bond."  In  Wait's 
Actions  and  Defenses  (volume  4,  p.  565)  the  rule  is  thus  stated :  "By 
the  common  law,  a  mortgagee  in  fee  of  land  is  considered  as  absolute- 
ly entitled  to  the  estate,  which  he  may  devise  or  transmit  by  descent 
to  his  heirs."    In  conformity  with  this  view,  Pomeroy,  in  his  work  on 


404  MORTGAGES 

Equity  Jurisprudence,  (volume  3,  p.  150,)  in  treating  of  this  subject, 
says :  "In  law,  the  mortgagee  may  convey  the  land  itself  by  deed,  or 
devise  it  by  will,  and  on  his  death  intestate  it  will  descend  to  his  heirs. 
In  equity,  his  interest  is  a  mere  thing  in  action,  assignable  as  such,  and 
a  deed  by  him  would  operate  merely  as  an  assignment  of  the  mortgage ; 
and  in  administering  the  estate  of  a  deceased  mortgagee  a  coyirt  of 
equity  treats  the  mortgage  as  personal  assets,  to  be  dealt  with  by  the 
executor  or  administrator." 

We  have  already  seen  that  under  the  decisions  of  this  court,  and  by 
the  general  current  of  authority,  a  mortgage  is  not  assignable  at  law 
by  mere  indorsement,  as  in  the  case  of  commercial  paper.  But,  on  the 
other  hand,  the  estate  and  interest  of  the  mortgagee  may  be  conveyed 
to  the  holder  of  the  indebtedness,  or  even  of  a  third  party,  by  deed 
with  apt  words  of  conveyance;  and  the  fact  that  it  is  in  form  an  as- 
signment will  make  no  difference.  2  Washb.  Real  Prop.  115,  116. 
Such  an  assignee,  if  owner  of  the  mortgage  indebtedness,  might,  no 
doubt,  maintain  ejectment  in  his  own  name  for  his  own  use.  Or  the 
action  might  be  brought  in  his  name  for  the  use  of  a  third  party  own- 
ing the  indebtedness.  Kilgour  v.  Gockley,  83  111.  109.  So,  in  this  case, 
if  the  action  had  been  brought  in  the  name  of  Kearns'  heirs  for  the  use 
of  Hinkley,  no  reason  is  perceived  why  the  action  might  not  be  main- 
tained. 

It  must  not  be  concluded,  from  what  we  have  said,  that  the  dual 
system  respecting  mortgages,  as  above  explained,  exists  in  this  state 
precisely  as  it  did  in  England  prior  to  its  adoption  in  this  country,  for 
such  is  not  the  case.  It  is  a  conceded  fact  that  the  equitable  theory 
of  a  mortgage  has,  in  process  of  time,  made  in  this  state,  as  in  others, 
material  encroachments  upon  the  legal  theory  which  are  now  fully  rec- 
ognized in  courts  of  law.  Thus,  it  is  now  the  settled  law  that  the  mort- 
gagor or  his  assignee  is  the  legal  owner  of  the  mortgaged  estate,  as 
against  all  persons  except  the  mortgagee  or  his  assigns.  Hall  v.  Lance, 
25  111.  277 ;  Emory  v.  Keighan,  88  111.  482.  As  a  result  of  this  doc- 
trine it  follows  that,  in  ejectment  by  the  mortgagor  against  a  third 
party,  the  defendant  cannot  defeat  the  action  by  showing  an  outstand- 
ing title  in  the  mortgagee.  Hall  v.  Lance,  supra.  So,  too,  courts  of 
law  now  regard  the  title  of  a  mortgagee  in  fee  in  the  nature  of  a  base 
or  determinable  fee.  The  term  of  its  existence  is  measured  by  that  of 
the  mortgage  debt.  When  the  latter  is  paid  off,  or  becomes  barred  by 
the  statute  of  limitations,  the  mortgagee's  title  is  extinguished  by 
operation  of  law.  Pollock  v.  Maison,  41  111.  516;  Harris  v.  Mills,  28 
111.  44,  81  Am.  Dec.  259;  Gibson  v.  Rees,  50  111.  383.  Hence  the  rule 
is  well  established  at  law,  as  it  is  in  equity,  that  the  debt  is  the  prin- 
cipal thing,  and  the  mortgage  an  incident. 

So,  also,  while  it  is  indispensable  in  all  cases  to  a  recovery  in  eject- 
ment that  the  plaintiff  show  in  himself  the  legal  title  to  the  property 
as  set  forth  in  the  declaration,  except  where  the  defendant  is  estopped 
from  denying  it,  yet  it  does  3iot  follow  that  because  one  has  such  title 


SUBJECT-MATTER   OF   MORTGAGE  405 

he  may  under  all  circumstances  maintain  the  action ;  and  this  is  par- 
ticularly so  in  respect  to  a  mortgage  title.  Such  title  exists  for  the 
benefit  of  the  holder  of  the  mortgage  indebtedness,  and  it  can  only  be 
enforced  by  an  action  in  furtherance  of  his  interests ;  ~tliat  is,  as  a 
means  of  'coercing  payment.  If  the  mortgagee,  therefore,  should,  for  a 
valuable  consideration,  assign  the  mortgage  indebtedness  to  a  third 
party,  and  the  latter,  after  default  in  payment,  should  take  possession  of 
the  mortgaged  premises,  ejectment  would  not  lie  against  him  at  the  suit 
of  the  mortgagee  although  the  legal  title  would  be  in  the  latter,  for  the 
reason  it  would  not  be  in  the  interest  of  the  owner  of  the  indebtedness. 
In  short,  it  is  a  well-settled  principle  that  one  having  a  mere  naked 
legal  title  to  land  in  which  he  has  no  interest,  and  in  respect  to  which 
he  has  no  duty  to  perform,  cannot  maintain  ejectment  against  the  equi- 
table owner,  or  any  one  having  an  equitable  interest  therein,  with  a 
present  right  of  possession. 

This  case,  with  a  slight  change  of  the  circumstances,  would  afford 
an  excellent  illustration  of  the  principle.  Suppose  the  present  plain- 
tiff had  obtained  possession  under  his  equitable  title  to  the  note  and 
mortgage,  and  the  heirs  of  Kearns,  who  had  the  legal  title,  had  brought 
ejectment  against  him,  the  action  clearly  could  not  have  been  main- 
tained, for  the  reasons  we  have  just  stated.  But  it  does  not  follow,  be- 
cause such  an  action  would  not  lie  against  him,  that  he  could,  upon  a 
mere  equitable  title,  maintain  the  action  against  others.  Cottrell  v. 
Adams,  2  Biss.  351-353,  9  Myers,  Fed.  Dec.  240,  Fed.  Cas.  No.  3,272. 
The  question  in  that  case  was  almost  identical  with  the  question  in 
this,  and  the  court  reached  the  same  conclusion  we  have.  See,  also, 
Speer  v.  Hadduck,  31  111.  439. 

For  the  reasons  stated,  the  judgment  of  the  court  below  is  revers- 
.jed,  and  the  cause  remanded  for  further  proceedings  not  inconsistent 
with  this  opinion. 


II.  Subject-Matter  of  Mortgage  ■ 


NELIGH  V.  MICHENOR. 

(Court  of  Chancery  of  New  Jersey,  1858.     11  N.  J.  Eq.  539.) 

Williamson,  Ch.  In  the  year  1852  the  complainant  entered  into 
several  agreements  in  writing,  with  different  individuals  and  with  the 
Atlantic  Land  Company  Association,  for  thp  purchase  of  several 
tracts  of  land  in  the  county  of  Atlantic. 

By  the  terms  of  the  agreement,  the  several  tracts  were  to  be  con- 
veyed to  him  when  the  consideration  money  was  paid.  Under  the 
agreements,  he  entered  into  possession.  He  then  formed  a  partner- 
ship in  business  with  John  G.  Michenor,  one  of  the  defendants.     By 

»  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  186. 


40G  MORTGAGES 

the  terms  of  the  partnership  they  were  both  to  be  equally  interested 
in  "the  several  tracts  of  land  embraced  in  tlie  agreements.  ^Nlichenor 
then  entered  into  possession  with  the  complainant.  They  made  val- 
uable improvements ;  and,  on  one  of  the  tracts,  erected  a  hotel,  at  a 
cost  of  upwards  of  fifty  thousand  dollars.  On  the  17th  October, 
1854,  they  made  a  settlement  between  them,  and  dissolved  partner- 
ship. It  was  found,  upon  the  settlement,  that  the  complainant  had 
made  advances,  most  of  which  had  been  expended  in  the  erection  of 
the  hotel  and  other  improvements,  to  an  amount  exceeding  thirteen 
thousand  dollars.  It  was  agreed,  in  the  terms  of  the  dissolution,  that 
the  complainant  should  convey  to  Alichenor  all  his  interest  in  the 
several  tracts  of  land  mentioned  in  the  agreements ;  that  Michenor 
should  pay  whatever  remained  due  of  the  consideration  money ;  that 
he  should  pay  all  the  outstanding  debts  of  the  partnership,  and  should 
execute  a  mortgage  upon  the  said  land  to  secure  the  complainant  that 
judgment  of  $13,242.62,  in  five  equal  annual  payments.  The  deed 
was  executed,  and  delivered  by  the  complainant  to  Michenor,  and 
the  latter  executed  and  delivered  the  mortgage,  as  agreed  upon. 
Michenor  never  procured  any  title  to  the  land  to  be  made  to  him ; 
but  with  his  consent,  in  the  year  1854,  conveyances  were  made  to 
Charles  Harlan,  another  of  the  defendants,  who  undertook  to  pay 
what  remained  due  of  the  consideration  money  and  some  mechanic 
liens  which  were  upon  the  hotel.  It  does  not  appear  that  there  was 
any  agreement  in  writing  between  the  complainant  and  Harlan,  and 
there  is  no  evidence  as  to  the  particulars  of  the  agreement  upon  which 
he  received  the  conveyances. 

The  bill  charges  that  although  the  deeds  to  Harlan  are  absolute  on 
their  face,  it  was  understood  that  he  should  take  the  title  merely  to 
secure  future  advances;  it  alleges  that  the  arrangement  between 
Michenor  and  Harlan  was  fraudulent,  and  was  made  for  the  pur- 
pose of  defeating  the  complainant's  mortgage,  and  that  Harlan  had 
notice  of  the  mortgage  before  he  took  the  conveyances.  The  main 
object  of  the  bill  is  to  establish  the  mortgage  as  a  lien  upon  the  sev- 
eral tracts  of  land  particularly  described  in  it,  and  conveyed  to  Har- 
lan, and  the  priority  of  the  mortgage. 

Harlan  and  Michenor  have  put  in  their  answers  to  the  bill  sepa- 
rately. They  both  deny  that  Harlan  took  the  conveyances  to  sectire 
future  advances,  but  allege  that  the  title  is  absolute  in  him,  and  with- 
out any  implied  reservation  in  favor  of  Michenor.  Michenor  denies 
that  he  gave  any  notice  to  Harlan  of  the  complainant's  mortgage,  and 
the  latter  denies  that,  at  the  time  of  the  conveyances  to  him,  or  at 
the  time  he  paid  the  consideration  money,  he  had  any  knowledge  what- 
ever of  the  mortgage.  And  he  denies  the  validity  of  the  mortgage 
as  a  lien  upon  the  property,  even  admitting  he  had  notice. 

Was  this  mortgage  a  valid  mortgage?  and  did  Harlan  have  notice_ 
of  it.''     If  these  questions  are  answered  in  the  affirmative,  the  com- 


SUBJECT-MATTER   OF   MORTGAGE  407 

plainant  is  entitled  to  relief,  leaving  only  one  other  question  to  be 
decided — whether  the  mortgage  is  entitled  to  priority  over  the  ad- 
vances made  by  Harlan. 

The  validity  of  this  mortgage  is  denied,  upon  the  ground  that  Mich- 
enor,  the  mortgagor,  had  not  any  such  title  to,  or  interest  in,  the  land 
as  v^as  capable  of  being  mortgaged.  The  complainant  was  the  pur- 
chaser under  agreements  with  the  vendor  under  hand  and  seal,  that 
they  would  convey  to  him  the  land,  at  a  future  day,  upon  his  pay- 
ing the  consideration  money  expressed  in  the  agreements.  Has  the 
purchaser,  under  such  an  agreement,  an  interest  in  the  land  which  is 
the  subject  of  mortgage?  For  if  the  complainant  had  an  interest  ca- 
pable of  being  mortgaged,  Michenor  had  also,  for  all  the  interest  which 
the  complainant  had,  he  assigned  and  conveyed  to  Michenor. 

In  2  Story,  Eq.  Jur,  §  1021,  it  is  said:  "As  to  kinds  of  property 
which  may  be  mortgaged,  it  may  be  stated  that,  in  equity,  whatever 
property,  personal  or  real,  is  capable  of  an  absolute  sale,  may  be  the 
subject  of  a  mortgage.  This  is  in  conformity  to  the  doctrine  of  the 
civil  law — Quod  emptionem,  venditionem  que  recipit,  etiam  pignora- 
tionem  recipere  potest.  Therefore  rights  in  remainder  and  reversion, 
possibilities  coupled  with  an  interest,  rents,  franchises,  and  choses  in 
action,  are  capable  of  being  mortgages." 

Everything  which  is  the  subject  of  a  contract,  or  which  may  be 
assigned,  is  capable  of  being  mortgaged.  The  right  or  interest  which 
the  complainant  had  in  the  lands  was  created  by  contract ;  and  it  was 
the  valuable  right  of  having  a  legal  conveyance  of  the  land,  upon  his 
complying  with  the  terms  of  the  contract.  He  had  acquired  an  in- 
terest in  the  land,  which  could  not  be  affected,  or  conveyed  away  by 
the  vendor,  without  a  fraud  upon  the  vendor's  rights.  And  a  pur- 
chaser, who  should  have  received  a  conveyance  with  knowledge  of 
the  existing  agreement,  would  have  been  held,  in  equity,  as  the  ven- 
dor himself  was  in  fact,  a  mere  trustee  for  the  complainant.  Equity 
considers  the  vendor  as  a  trustee  for  the  vendee  of  the  real  estate,  and 
the  vendee  as  a  trustee  for  the  vendor  of  the  purchase  money.  The 
vendee  is  so  far  treated  as  the  owner  of  the  land  that  it  is  devisable 
and  descendible  as  his  real  estate,  and  the  money  is  treated  as  the 
personal  estate  of  the  vendor,  and  goes  to  his  personal  representatives 
at  his  death.  2  Story,  Eq.  Jur.  §  112.  There  cannot  be  a  doubt  that 
such  an  interest  as  the  complainant  had  under  his  contracts  for  pur- 
chase, and  which  he  assigned  to  Michenor,  is  capable  of  being  mort- 
gaged. It  is  the  subject  of  an  equitable  lien  or  trust,  which  a  court 
of  equity  will  enforce  and  protect.  Interests  in  property  are  protected 
by  courts  of  equity  which  are  not  recognized  at  law  as  valid  or  efifec- 
tual  as  subject  matters  of  legal  conveyances  or  assignments.  1  Pow. 
Mortg.  17,  in  enumerating  the  things  which  are  capable  of  being  mort- 
gaged, says:  "Everything  which  may  be  considered  as  property, 
whether,  in  the  technical  language  of  the  law,  denominated  real  or 


408  MOUTGAOxES 

personal  property,  may  be  the  subject  of  a  mortgage.  Advowsons^ 
rectories  and  tithes  may  be  the  subject  of  a  mortgage.  Reversions  and 
remainders,  being  capable  of  grant  from  man  to  man,  are  mortgaga- 
ble.  Possibilities,  also,  being  assignable,  are  mortgagable,  a  mortgage 
of  :hem  being  only  a  conditional  assignment."  A  tenant  at  will  has 
not  such  an  estate  or  property  in  lands  as  can  be  mortgaged,  but  any 
estate  in  fee  simple,  fee  tail,  for  life  or  years,  in  any  lands,  or  in 
any  rent  or  profit  out  of  the  same,  may  be  mortgaged.  1  Pow. 
Mortg.  18. 

The  case  of  Parkist  v.  Alexander,  1  Johns.  Ch.  (N.  Y.)  394,  was, 
in  its,  leading  features,  very  similar  to  the  present  case,  and  its  deci- 
sion necessarily  involved  the  question  we  are  now  considering.  Tuck- 
er made  a  parol  agreement  with  Alexander,  who  acted  as  agent  for 
Ellis,  the  owner  of  the  property,  for  a  lease  to  Tucker,  in  fee,  for  a 
lot  of  land,  subject  to  the  annual  rent  of  three  pounds.  Parkist,  the 
compklnant  in  the  suit,  purchased  Tucker's  right,  and  took  posses- 
sion of  the  premises,  and  made  valuable  improvements.  He  then  sold 
the  premises  to  McKnight,  and  gave  him  a  quit-claim  deed;  and,  to 
secure  the  payment  of  the  purchase  money,  took  his  bond  and  mort- 
gage, which  was  duly  recorded.  Alexander  procured  the  lease  from 
Ellis,  the  owner  of  the  premises,  and  then  McKnight  conveyed  to 
Alexander  for  $700.  The  answer  denied  that  Alexander  had  any  no- 
tice of  the  mortgage.  The  chancellor  sustained  the  mortgage,  and 
decided  that  the  registry  of  it  was  notice  to  a  subsequent  bona  fide 
purchaser.  It  will  be  observed,  that  when  McKnight  mortgaged  the 
premises,  he  had  no  other  interest  in  them  than  the  assignment  of 
Parkist's  right,  under  a  verbal  agreement  for  a  lease  between  Tucker 
and  the  agent  of  Ellis,  the  owner,  and  the  right  to  which  lease  Parkist 
had  purchased  of  Tucker.  The  interest  which  the  mortgagee  had 
in  the  land  was  an  interest  similar  to  that  which  Michenor  had  when 
he  mortgaged  to  the  complainant.  McKnight  had  a  right  for  a  lease 
in  fee,  subject  to  the  payment  of  an  annual  rent.  If  an  interest  like 
that  was  capable  of  being  mortgaged,  then  surely  Michenor,  who  had 
a  right  to  a  conveyance  in  fee,  had  such  an  interest  as  would  support 
a  mortgage.  The  mere  fact  of  all  the  consideration  money  not  hav- 
ing been  paid,  cannot  affect  the  question,  whether  his  interest  was  such 
as  could  be  mortgaged.  I  Jhink.that  Michenor  had  an  interest  capa- 
ble of  being  mortgaged,  and  that  it  created  a  valid  Hen  upon  the  land 
subject  to  the  rights  of  the  vendor  under  the  agreement. 

Did  Plarlan  have  notice  of  the  mortgage?  The  mortgage  was  duly 
recorded.  It  is  insisted  that  the  registry  was  notice.  It  does  appear 
to  me,  notwithstanding  the  decision  of  Parkist  v.  Alexander,  that  the 
registry  of  such  a  mortgage  ought  not  to  be  considered  as  notice. 
If  it  is  notice,  it  is  notice  to  all  the  world.  Now  if  Leeds,  one  of  the 
persons  witli  whom  the  complainant  made  an  agreement  to  purchase, 
had  sold  the  premises  to  a  bona  fide  purchaser  without  actual  notice 


SUBJECT-MATTEB   OF   MORTGAGE  409 

of  this  mortgage,  would  such  purchaser  have  been  affected  by  the 
registry  of  such  equitable  mortgage?  The  agreement  was  not  re- 
corded. There  was  no  authority  to  record  it.  A  bona  fide  purchaser 
would  not  be  affected  by  such  agreement.  If  not,  could  he  be  affected 
"by~"tlie  registry  of  a  mortgage  executed  by  the  vendee  of  such  agree- 
ment? The  object  of  the  registry  is  to  give  notice  to  subsequent  pur- 
chasers. But  the  registry  of  a  mortgage  like  this  is  no  protection. 
The  title  upon  the  record  was  in  Leeds,  and  finding  the  title  in  him, 
^a  person  who  went  to  the  record  to  search  for  encumbrances  upon 
the  premises  would  have  no  intimation  that  it  was  necessary  to  search 
in  the  name  of  Michenor.  There  was  nothing  upon  the  record  to 
show  that  he  had  any  interest  in  the  land,  or  to  give  him  any  clue 
whatever  to  this  mortgage;  and  if  he  was  required  to  search  for 
such  a  mortgage,  then  he  would  be  obliged  to  search  them  through 
every  name  to  be  found  in  the  registry  books. 

But  I  do  not  deem  it  necessary  to  decide  this  point.  I  think  it  is 
proved,  beyond  all  dispute,  that  Harlan  had  actual  notice  of  this  mort- 
gage. In  his  petition  to  open  the  decree  pro  confesso,  which  was  ob- 
tained against  him  in  this  cause,  and  which  is  under  oath,  he  says 
that  on  or  about  the  25th  of  May,  1855,  he  took  a  deed  from  Charles 
Leeds  and  wife  for  the  land  embraced  in  their  agreement  with  the 
complainant;  that,  on  the  19th  day  of  May,  1855,  Hackett  and  wife 
executed  a  deed  to  him  for  the  land  embraced  in  their  agreement  with 
the  complainant,  which  was  delivered  on  or  about  the  25th  of  May, 
1855,  and  that  the  Camden  and  Atlantic  Land  Company  executed  a 
deed  to  him  on  the  27th  of  April,  1855,  for  the  land  mentioned  in 
their  agreement  with  the  complainant,  but  which  was  not  delivered  un- 
til the  first  of  the  month  of  June,  1855.  In  his  answer,  he  states  that 
before  he  had  any  knowledge  or  notice  whatever  of  the  complainant's 
mortgage,  he  had  not  only  made  the  agreement  with  Michenor,  and 
paid  the  money  for  the  property,  but  that  he  had  obtained  the  title 
deeds  for  the  property  before  such  knowledge. 

He  further  states  that  some  person,  some  time  in  the  spring  of 
1855,  brought  to  him  a  mortgage  purporting  to  be  given  by  Michenor 
to  the  complainant,  and  said  to  cover  the  property,  or  some  part 
thereof,  purchased  by  him,  but  whether  it  did  so  cover  it  or  not,  he 
-cannot  positively  say,  but  that  prior  to  that  time  his  agreement  with 
Michenor  had  been  made  and  consummated,  the  money  paid,  and  the 
deeds  all  been  executed,  and  that  the  deeds  from  Hackett  and  wife 
and  Leeds  and  wife  had  been  actually  delivered,  and  that  he  thinks 
and  believes  that  the  deed  from  the  Camden  and  Atlantic  Land  Com- 
pany had  also  been  delivered.  In  his  petition  he  states  that  the  first 
information  or  knowledge  he  ever  had  that  there  was  any  such  mort- 
gage or  agreement  between  the  complainant  and  Michenor  was  some 
time  after  the  deeds  had  been  executed  and  delivered,  and  the  pur- 
chase money,  in  full,  paid,  and  that  such  information  was  given  to 


410  MORTGAGES 

him  by  Judge  Carpenter,  the  counsel  of  Michenor,  which  was  some 
time  after  the  deed  from  the  land  company  had  been  made,  and  was 
on  the  day,  and  at  the  time,  the  purchase  money  was  paid,  and  the 
deed  of  the  company  delivered. 

It  is  possible,  with  some  difficulty,  to  reconcile  the  discrepancies 
between  the  petition  and  the  answer  with  a  disposition  to  tell  the 
truth ;  but  the  evidence  so  completely  disproves  the  statements  of 
both,  as  to  render  such  an  attempt  altogether  unnecessary  and  un- 
availing. 

James  H.  Castle  says  that  in  May,  1855,  between  the  10th  and  15th, 
the  complainant  placed  the  mortgage  in  his  hands  to  sell  for  him,  and 
requested  him  to  make  application  to  Harlan;  that  on  or  about  the 
20th  of  Alay,  he  laid  the  mortgage  before  Harlan ;  that  he  spent  some 
time  with  him  about  the  matter;  that  Harlan  examined  the  papers 
carefully,  and  took  a  memorandum  of  the  property,  and  the  dates 
of  the  mortgage,  &c. ;  that  he  examined  the  map,  and  when  they  sep- 
arated said  he  would  see  witness  again  upon  the  subject;  that  on 
the  next  day  he  called  and  asked  to  look  at  the  papers,  which  were 
shown  him,  when  he  remarked  that  the  mortgage  was  not  worth  the 
paper  on  which  it  was  written.  Witness  says,  in  consequence  of  Har- 
lan's remark,  he  went  to  the  complainant,  and  told  him  he  had  bet- 
ter take  legal  counsel,  and  recommended  Judge  Carpenter.  Judge 
Carpenter  testifies,  refreshing  his  memory  from  an  entry  in  his  docket, 
that  the  complainant  retained  him  on  the  25th  of  May,  and  then  placed 
the  mortgage  in  his  hands.  There  was  no  one  of  the  deeds  delivered, 
and  no  money  paid  before  the  25th  of  May.  Harlan  so  states  in  his 
answer  and  his  petition.  So  that  it  is  proved  that  before  he  received 
a  deed,  or  paid  any  money,  he  had  full  notice  of  the  mortgage. 

Isaac  Loyd  testifies  that  he  was  the  secretary  and  treasurer  of  the 
Camden  and  Atlantic  Land  Company ;  that  the  deed  from  that  com- 
pany to  Harlan  was  delivered  by  the  witness  to  Harlan  on  the  8th 
of  June,  1855,  and  at  that  time  he  received  from  him  the. purchase 
money.  The  witness  further  testifies  that  Judge  Carpenter  requested 
him  to  give  notice  to  Harlan  of  the  mortgage  before  its  delivery ;  that 
he  gave  him  the  notice,  and  that  Harlan  made  no  reply,  but  smiled 
as  though  he  knew  all  about  it,  and  as  if  it  was  of  no  consequence. 

The  evidence  establishes  the  fact  that  Harlan  had  actual  notice  of 
the  complainant's  mortgage  before  his  purchase. 

It  appears  that,  at  the  time  of  Harlan's  purchase,  there  was  due 
and  payable  to  the  grantors,  for  purchase  money  upon  their  several 
agreements  the  sum  of  five  thousand  two  hundred  and  eighty-one 
dollars,  and  that  this  amount  was  paid  by  Harlan.  He  also  made  other 
advances  to  satisfy  encumbrances  upon  the  property.  Under  ordinary 
circumstances,  these  payments  would  have  been  decreed  existing  liens 
upon  the  property  in  the  hands  of  Harlan,  having  priority  over  the 
complainant's  mortgage.     Although  Michenor,  in  his  agreement  with 


SUBJECT-MATTER   OF   MORTGAGE  4.11 

the  complainant,  was  bound  to  pay  the  purchase  money,  it  appears 
he  was  unable  to  do  so.  It  was  necessary  the  money  should  be  paid, 
or  the  title  of  the  vendee  under  the  agreement  would  have  been  for- 
feited. The  payment  of  this  money,  therefore,  was  necessary  in  order 
to  complete  the  title  which  supports  the  mortgage.  If  a  third  person, 
under  such  circumstances,  had  advanced  the  money  in  order  to  pre- 
\ent  a  forfeiture  of  the  vendee's  rights  under  the  agreement,  I  think 
it  would  have  been  equitable  that  he  should  be  reimbursed.  But_  Har- 
lan claims  no  such  equity.  He  does  not  pretend  that  he  paid  the  mon- 
ey for  the  purpose  of  protecting  the  mortgage.  On  the  contrary,  he 
is  detected  in  an  attempt  to  deprive  the  complainant  of  his  security. 
His  object  was  to  defeat  the  mortgage;  and  having  been  thwarted 
in  this  unlawful  purpose,  he  has  no  claim  whatever  to  the  interfer- 
ence of  this  court  for  his  protection.  He  must  stand  upon  his  legal 
rights. 

There  was  an  objection  made,  that  at  the  time  of  filing  the  bill  there 
was  no  default  of  payment  of  anything  due  upon  the  mortgage.  If 
such  were  the  fact,  the  complainant  had  a  right,  under  the  circum- 
stances, to  file  his  bill  to  protect  his  lien.  That  being  established,  he 
has  now  a  right  to  have  it  enforced  for  whatever  may  be  due  upon 
it  at  the  time  of  the  decree. 

There  must  be  a  reference  to  a  master  to  take  an  account  of  what 
is  due  upon  the  mortgage  and  upon  the  other  encumbrances,  which 
appear,  by  the  pleadings,  to  be  undisputed.  In  taking  the  account, 
Michenor  will  have  an  opportunity  of  showing  what  credit  he  is  en- 
titled to  upon  the  mortgage,  and  for  that  purpose  the  master  can  use 
the  depositions  already  taken,  and  may  take  such  other  testimony  as 
the  parties  may  see  proper  to  offer. 


PLATT  V.  NEW  YORK  &  S.  B.  RY.  CO. 

(Supreme  Court  of  New  York,  Appellate  Division,  Second  Department,  1896. 

9  App.  Div.  87,  41  N.  Y.  Supp.  42.) 

Appeal  from  special  term,  Kings  county. 

Action  by  William  O.  Piatt  and  another,  as  trustees,  against  the 
New  York  &  Sea  Beach  Railway  Company  and  Sophia  M.  Onder- 
donk,  to  foreclose  a  mortgage.  From  an  order  denying  the  petition 
of  August  Meidling,  Jr.,  a  judgment  creditor  of  defendant  railway 
company,  to  vacate  an  order  appointing  a  receiver,  and  also  a  judg- 
ment entered  in  the  action  or  to  modify  the  same,  petitioner  appeals. 
Affirmed. 

Argued  before  Brown,  P.  J.,  and  Cull^n,  Barti,e;tt,  and 
Hatch,  JJ. 

Hatch,  J.  The  validity  of  the  mortgage  is  not  controverted.  But 
it  is  claimed  that  under  it  no  lien  was  acquired  upon  the  personal  prop- 


412  MORTGAGES 

erty  purchased  subsequent  to  its  execution  as  against  the  petitioner 
herein.  That  the  lien  should  attach  to  after-acquired  property  is 
within  the  express  terms  of  the  mortgage,  and  it  is  not  disputed  that 
such  is  its  effect  as  between  the  parties  thereto.  By  the  provisions 
of  the  statute  (Laws  1850,  c.  140,  §  10),  authority  was  conferred  to 
mortgage  the  corporate  property  and  franchises  for  the  purpose  of 
completing,  furnishing,  or  operating  the  railroad;  &nd  this  authority 
has  been  continued  in  the  same  language  under  the  revision  of  the 
railroad  law  (Laws  1892,  c.  676,  §  4,  subd.  10).  The  statute  contem- 
plates that  it  may  be  necessary  to  borrow  money  for  the  purpose  of  the 
physical  creation  of  the  road  and  putting  it  in  operation.  It  is  quite 
evident  that  in  the  accomplishment  of  this  purpose  property  would 
be  created  and  acquired  that  had  no  actual  or  potential  existence  at 
the  time  when  the  loan  was  made  and  the  mortgage  given.  It  is  the 
usual  course  of  procedure  in  the  construction  of  a  railroad  that  money 
is  raised  by  mortgage  upon  its  property,  and  that  the  structure  is  built 
and  operated  to  a  large  extent  by  means  of  the  loans  thus  obtained, 
and  much  of  the  property  is  created  and  acquired  after  the  loan  is 
made.  The  statute  makes  no  distinction  between  property  necessary 
for  the  completion  and  furnishing  of  the  road  and  that  which  is  essen- 
tial to  its  operation.  By  the  terms  of  the  law,  therefore,  it  was  con- 
templated that  for  the  money  thus  obtained  the  property  acquired 
should  be  pledged  as  the  security  for  its  repayment,  and  this  cannot 
be  accomplished  without  holding  that  the  lien  of  the  mortgage  at- 
taches to  such  property  as  shall  be  necessary  for  that  purpose,  whether 
in  existence  at  the  time  when  the  mortgage  is  given  or  is  subsequently 
acquired,  and  whether  such  property  be  such  as  is  denominated  "real" 
or  "personal."  So  it  was  early  held  that  such  a  mortgage  created, 
in  equity,  a  lien  upon  property  subsequently  acquired  superior  to 
the  lien  of  a  subsequent  incumbrancer  by  mortgage  or  judgment. 
Seymour  v.  Railroad  Co.,  25  Barb.  284;  Benjamin  v.  Railroad  Co., 
49  Barb.  447;  Stevens  v.  Watson,  4  Abb.  Dec.  302.  In  those  cases 
the  question  arose  respecting  liens  upon  subsequently  acquired  real 
property.  But  the  discussion  shows  that  the  court  considered  the 
rule  applicable  as  well  to  personal  as  to  real  property.  Such  has  been 
the  uniform  rule  applied  in  the  federal  courts.  Mitchell  v.  Winslow, 
2  Story,  630,  Fed.  Cas.  No.  9,673;  Trust  Co.  v.  Kneeland,  138  U. 
S.  419,  11  Sup.  Ct.  357,  34  L.  Ed.  1014. 

The  difficulties  which  have  arisen  relate  not  so  much  to  the  recogni- 
tion of  the  mortgage  as  a  lien,  for  the  doctrine  of  the  above-cited 
cases  has  never  been  questioned,  but  rather  to  the  steps  necessary  to 
be  taken  to  evidence  the  lien.  The  first  debate  arose  over  the  ques- 
tion whether  the  rolling  stock  and  equipment  of  the  road  retained  its 
character  as  personal  property,  and,  if  so,  was  it  requisite  that  it  should 
be  filed  as  a  mortgage  of  chattels.  The  supreme  court  divided  upon 
the  question,  and  decisions  were  rendered  both  ways.     The  court  of 


SUBJECT-MATTER   OF   MORTGAGE  413 

appeals  in  Hoyle  v.  Railroad  Co.,  54  N.  Y.  314,  13  Am.  Rep.  595, 
/  settled  the  question  by  holding  that  it  was  personal  property,  and  that 
the  mortgage  covering  it  must  be  filed  as  a  mortgage  of  chattels,  as 
prescribed  by  the  act  of  1833,  or  the  same  would  be  void  as  against 
the  general  creditors  of  the  corporation.  To  meet  this  conclusion,  the 
legislature  in  1868  passed  an  act  (Laws  1868,  c.  779),  providing  that 
it  shall  not  be  necessary  to  file  such  mortgage  as  a  mortgage  of  chat- 
tels when  it  covers  real  and  personal  property,  and  is  recorded  as  a 
mortgage  of  real  estate  in  each  county  in  or  through  which  the  railroad 
runs.  By  this  act  the  status  of  such  property,  so  far  as  it  relates  to 
liens  by  way  of  mortgage,  is  made  practically  subject  to  the  same 
rules,  and  is  placed  upon  the  same  footing,  as  real  property.  The  busi- 
ness carried  on  by  railroads,  the  great  extent  of  territory  which  they 
cover,  and  the  fact  that  the  rolling  stock  is  at  all  times  widely  dis- 
tributed, not  only  throughout  the  state  through  which  its  lines  mainly 
run,  but  also  throughout  the  different  states  of  the  Union,  creates  an 
essential  difference  between  it  and  property  whose  situs  is  practically 
fixed.  This,  coupled  with  the  necessity  which  exists  for  certainty 
of  security  to  those  advancing  money,  usually  in  very  large  amounts, 
upon  the  faith  of  railroad  property,  and  the  practical  difficulty,  if  not 
impossibility,  of  a  railroad  being  able  to  realize  upon  its  property  in 
this  manner,  if  the  technical  rules  respecting  liens  upon  personal  prop- 
erty should  obtain,  evidently  created  an  intent  in  the  mind  of  the 
legislature  to  make  such  property  subject  to  the  same  rules,  so  far  as 
practicable,  as  apply  to  liens  upon  real  property.  It  is  quite  evident  > 
that,  if  it  should  be  held  necessary  to  constantly  revise  such  a  mort- 
gage, in  order  to  cover  what  has  been,  it  may  be,  purchased  by  the 
money  advanced  or  to  supply  operating  needs,  and  replenish  what  is 
destroyed,  it  would  render  such  security  so  doubtful  and  precarious 
as  not  only  to  impair,  but  to  practically  destroy,  its  value. 

We  can  see  no  reason  for  drawing  a  distinction  in  this  regard  be- 
tween real  and  personal  property.  On  the  contrary,  as  the  authority 
for  the  mortgage  of  both  is  derived  from  the  same  source,  and  the 
same  reasons  exist  why  both  should  be  available  and  answerable  as 
security,  we  think  it  more  in  harmony  with  the  legislative  intent  to 
subject  it  to  the  same  rules.  New  York  Security  &  Trust  Co.  v.  Sara- 
toga Gas  &  Electric  Light  Co.,  88  Hun,  569,  34  N.  Y.  Supp.  890.  This 
view  does  not  bring  us  in  conflict  with  Distilling  Co.  v.  Rasey,  142  N. 
Y.  570,  37  N.  E.  632,  40  Am.  St.  Rep.  635.  That  case  proceeded  upon 
the  well-settled  legal  rule  that  a  mortgage  of  chattels  having  no  actual 
or  potential  existence  when  the  mortgage  was  given  is  void  as  to  inter- 
vening creditors.  For  reasons  already  stated,  that  rule  has  no  appli- 
cation to  a  mortgage  of  this  character. 

It  follows  that  the  order  appealed  from  should  be  affirmed,  with 
$10  costs  and  disbursements.    All  concur. 


414  MORTGAGES 


III.  Form  of  Mortgages  * 


1.  Defeasance  in  Separate  Instrument 


COOK  V.  BARTHOLOMEW. 

(Supreme  Court  of  Errors  of  Connecticut.  1891.     60  Conn.  24,  22   Atl.  444. 

13  L.  R.  A.  452.) 

Case  reserved  from  court  of  common  pleas,  Litchfield  county. 

Carpenter,  J.  This  is  a  suit  for  the  foreclosure  of  a  mortgage, 
with  the  alleged  mortgage  annexed  as  an  exhibit.  The  mortgage  is 
m  two  parts, — an  ordinary  deed  for  the  consideration  of  $900,  duly 
executed  to  convey  real  estate,  and  a  condition  thereto  attached,  of 
the  same  date,  and  signed  by  the  grantor,  as  follows :  "The  condi- 
tion of  the  within  deed  is  as  follows:  The  said  Bostwick,  for  the 
consideration  named  in  the  within  deed,  covenants  and  agrees  with 
said  Charles  Cook,  as  such  conservator,  that  he  will  receive  said  Sarah 
A.  Bostwick  into  his  care  and  keeping  during  the  term  of  her  natural 
life;  that  he  will  provide  for  all  her  wants  in  a  reasonable  and  proper 
way ;  will  provide  her  with  all  needed  food,  drink,  and  clothing ;  have 
a  room  and  fire  when  needed ;  lodging  and  every  necessary  comfort, 
both  in  sickness  and  health ;  and  at  her  decease  give  her  decent  and 
proper  burial,  and  erect  tombstones  at  her  grave,  with  a  suitable  in- 
scription thereon,  within  one  year  after  her  decease,  said  tombstones 
to  be  of  a  value  of  not  less  than  fourteen  dollars.  Now,  therefore, 
if  said  Bostwick  shall  well  and  truly  perform  all  and  every  of  the 
above  covenants  and  stipulations  faithfully,  then  this  deed  to  be  void ; 
otherwise  to  remain  in  full  force  and  effect  in  law."  The  complaint 
also  alleges  that  the  defendant  Bostwick  subsequently  conveyed  his 
interest  in  the  premises  to  the  defendant  Jones,  and  that  Jones  con- 
veyed his  interest  to  the  other  defendant,  Bartholomew.  The  defend- 
ants demurred,  and  the  case  is  reserved. 

Whether  the  instrument  sued  on  is  or  is  not  a  mortgage  is  the  prin- 
cipal question  in  the  case.  What  is  a  mortgage?  "A  mortgage  is  a 
contract  of  sale  executed,  with  power  to  redeem.  *  *  *  'j^j-^g  (.q^_ 
dition  of  a  mortgage  may  be  the  payment  of  a  debt,  the  indemnity  of 
a  surety,  or  the  doing  or  not  doing  any  other  act.  The  most  common 
method  is  to  insert  the  condition  in  the  deed,  but  it  may  as  well  be 
done  by  a  separate  instrument  of  defeasance  executed  at  the  same  time. 
*  *  *  A  bond  or  note  is  usually  taken  for  the  debt,  which  is  de- 
scribed in  the  deed  with  a  condition  that  if  the  debt  is  paid  by  the  time 
the  deed  shall  be  void.  In  such  case  the  mortgage  is  called  a  collat- 
eral security  for  the  debt.     In  like  manner  an  engagement  to  indem- 

*  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  187. 


FORM    OF    MORTGAGES  415 

nify,  or  any  otiier  agreement,  may  be  described  in  the  mortgage  deed." 
2  Swift,  Dig.  182,  183.  "To  constitute  a  mortgage,  the  conveyance 
must  be  made  to  secure  the  payment  of  a  debt."  Bacon  v.  Brown, 
19  Conn.  29.  "A  conveyance  of  lands  by  a  debtor  to  a  creditor  as  a 
security  for  the  payment  of  the  debt."  Jarvis  v.  Woodruff,  22  Conn. 
548.  What  is  a  debt?  "That  which  is  due  from  one  person  to  an- 
other, whether  money,  goods,  or  services;  that  which  one  person  is 
bound  to  pay  to  another  or  to  perform  for  his  benefit ;  that  of  which 
payment  is  hable  to  be  exacted ;  due ;  obligation  ;  liability."  Webst. 
Diet.  What  is  this  case?  Ammon  Bostwick  received  $900  from  the 
plaintiff,  in  consideration  of  which  he  agreed  to  support  Sarah  A. 
Bostwick  during  life,  and  at  her  death  to  bury  her,  and  to  erect  a 
tombstone  to  her  memory.  To  secure  the  performance  of  this  agree- 
ment, he  executed  this  deed,  with  a  condition  that  the  deed  should 
be  void  if  the  agreement  should  be  performed.  He  assumed  a  duty, 
which  may  be  aptly  described  as  a  debt.  He  executed  a  deed  of  real 
estate  as  collateral  security  for  the  performance  of  that  duty, — the 
payment  of  that  debt.  The  qbhgation  falls  within  an  approved  defini- 
tion of  "debt,"  and  the  conveyance  is  within  the  legal  definition  of  a 
"mortgage." 

There  is  no  force  in  the  objection  that  this  cannot  be  a  mortgage 
because  of  the  difficulty  in  ascertaining  the  amount  of  the  debt,  as 
clearly  appears  by  the  definitions.  Of  course,  there  is  less  certainty 
and  more  inconvenience  in  reducing  an  obligation  of  this  nature  to 
a  money  valuation  than  there  is  in  computing  the  amount  due  on  an 
ordinary  bond  or  note.  Nevertheless  it  may  be  approximately  done, 
and  that  is  sufficient  for  all  the  purposes  of  substantial  justice.  Courts 
never  refuse  to  redress  an  injury  on  account  of  the  difficulty  in  esti- 
mating the  extent  of  the  injury  in  dollars  and  cents.  In  this  case 
-the  age,  health,  general  condition,  and  expectation  of  life  of  Sarah 
A.  Bostwick  must  be  known.  Add  to  these  the  probable  cost  of  sup- 
porting her  for  one  year,  and  we  have  the  data  for  a  reasonable  esti- 
mate of  the  cost  of  supporting  her  through  life.  It  is  a  problem  of 
the  same  nature,  containing  the  same  elements  and  similar  factors, 
with  the  problem  which  the  parties  solved  14  years  ago.  They  then, 
as  it  seems,  fixed  the  outside  limit  at  $900.  The  same  thing  can  be  done 
now  as  well  as  then.  Possibly  $900  may  be  considered  an  equitable 
limit,  beyond  which  the  plaintiff  may  not  claim  in  this  case. 

As  other  circumstances  may  exist  which  will  materially  affect  the 
general  question,  we  will  not  consider  the  question  further  on  this 
demurrer.  Regarding  the  conveyance  as  a  mortgage,  as  we  do,  there 
is  no  foundation  for  the  claim  that  an  entry  for  a  breach  of  the  condi- 
tion is  essential.  An  entry  is  essential  when  the  grantor  would  divest 
the  grantee  of  his  title  for  a  breach  of  a  condition.  This  is  an  action 
by  the  grantee,  in  whom  the  title  is,  not  to  enforce  a  forfeiture,  but 
to  foreclose  an  equity  of  redemption,  unless  the  grantor,  within  a  rea- 


416  MORTGAGES 

sonable  time  allowed  him  therefor,  pays  the  damag-e  sustained  by  a 
breach  of  his  agreement. 

The  court  of  common  pleas  is  advised  to  overrule  the  demurrer. 
The  other  judges  concur.'' 


2.  Deed  Absolute  on  Face 


PEUGH  V.  DAVIS. 

(Supreme  Court  of  United  States,  1877.    96  U.  S.  332,  24  L.  Ed.  775.) 

Appeal  from  the  Supreme  Court  of  the  District  of  Columbia. 

This  was  a  suit  in  equity  brought  June  28,  1869,  to  redeem  cer- 
tain real  property  in  Washington  City.  The  defence  consisted  in  an 
alleged  release  of  the  equity  of  redemption,  to  estabUsh  which,  in  ad- 
dition to  the  testimony  of  the  parties,  the  defendant  felied  principally 
upon  the  following  papers : — 

"Whereas  the  undersigned,  Samuel  A.  Peugh,  of  the  city  of  Wash- 
ington, in  the  District  of  Columbia,  having  heretofore  sold  and  con- 
veyed to  Henry  S.  Davis,  of  the  said  city,  two  certain  squares  of 
ground  in  said  city,  the  same  being  squares  numbered  nine  hundred  and 
ten  (910)  and  nine  hundred  and  eleven  (911)  in  the  said  city,  the  said 
sale  and  conveyance  having  been  by  the  said  Peugh  made  with  full 
assurance  and  promise  of  a  good  and  indefeasible  title  in  fee-simple, 
though  the  said  conveyance  contains  only  a  special  warranty,  the  said 
conveyance  to  said  Davis  bearing  date  on  the  fourth  day  of  March,  A. 
D.  1857,  and  being  recorded  on  the  seventh  day  of  September,  A.  D. 
1857. 

"And  whereas  the  title  to  the  said  squares  so  conveyed  as  aforesaid 
to  said  Davis  having  been  now  questioned  and  disputed,  the  said  Peugh 
doth  now,  for  himself,  his  heirs,  executors,  and  administrators,  prom- 
ise, covenant,  and  agree  to  and  with  the  said  Henry  S.  Davis,  his  heirs 
and  assigns,  in  the  manner  following;  that  is,  that  he,  the  said  Sam- 
uel A.  Peugh,  and  his  heirs  shall  and  will  warrant  and  for  ever  defend 
the  said  squares  of  ground  and  appurtenances  as  conveyed,  as  afore- 
said, unto  the  said  Henry  S.  Davis,  his  heirs  and  assigns,  from  and 
against  the  claims  of  all  persons  whomsoever. - 

"And,  further,  that  the  said  Peugh,  and  his  heirs,  executors,  and  ad- 
ministrators, shall  and  will  pay  and  refund  to  said  Davis,  his  heirs  or 
assigns,  all  and  singular  the  loss,  costs,  damage,  and  expenses,  includ- 
ing the  consideration  in  said  deed  or  conveyance,  which  or  to  which 
the  said  Davis,  his  heirs  or  assigns,  shall  lose,  incur,  pay,  or  be  subject 

6  And  see,  further,  French  v.  Case,  77  Mich.  04,  43  N.  W.  1056  (1889) ;  Day 
V.  Towns,  76  N.  H.  200,  81  Atl.  405  (1011),  damages  for  breach  of  covenant  to 
furnish  a  "home."  Sec,  also,  Powers  v.  Mastin,  62  Vt.  433,  20  Atl.  105  C1S90), 
holding  that,  where  there  is  no  specification  as  to  where  the  support  shall  be 
furnished,  it  is  the  right  of  the  mortgagee  to  appoint  a  reasonable  place. 


FORM   OF  MORTGAGES  417 

to,  by  reason  of  any  claim  or  ligitation  against  or  on  account  of  said 
squares  of  ground,  or  either  of  them. 

"And  for  the  full  and  faithful  observance  and  performance  of  all 
the  covenants  and  agreements  aforesaid,  and  for  the  payment  of  all  the 
sum  or  sums  of  money  as  therein  provided,  in  the  manner  prescribed 
as  aforesaid,  the  said  Samuel  A.  Peugh  doth  hereby  bind  himself,  his 
heirs,  executors,  and  administrators,  and  each  and  every  of  them, 
firmly  by  these  presents. 

"In  testimony  whereof,  the  said  Samuel  A.  Peugh  doth  hereto  so 
set  his  hand  and  seal  on  this  ninth  dav  of  February,  in  the  year  of  our 
Lord  1858.  ■    '  S.  A.  Peugh.     [Seal.] 

"Signed,  sealed,  and  delivered  in  the  presence  of 
"Francis  Mohun. 
"Wm.  H.  Ward." 

"Washington,  D.  C,  Feb.  9,  1858. 

"Received  of  Henry  S.  Davis  $2,000,  the  same  being  in  full  for  the 
purchase  of  squares  Nos.  910  and  911  in  the  city  of  Washington. 

"$2,000.  S.  A.  Peugh." 

The  other  facts  sufficiently  appear  in  the  opinion  of  the  court. 

The  decree  at  special  term  dismissing  the  bill  was  at  general  term 
affirmed ;  and  the  complainant  appealed  to  this  court. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

This  is  a  suit  in  equity  to  redeem  certain  property,  consisting  of  two 
squares  of  land  in  the  city  of  Washington,  from  an  alleged  mortgage 
of  the  complainant.  The  facts,  out  of  which  it  arises,  are  briefly  these  : 
In  March,  1857,  the  complainant,  Samuel  A.  Peugh,  borrowed  from 
the  defendant,  Henry  S.  Davis,  the  sum  of  $2,000,  payable  in  sixty 
days,  with  interest  at  the  rate  of  three  and  three-fourths  per  cent  a 
month,  and  executed  as  security  for  its  payment  a  deed  of  the  two 
squares.  This  deed  was  absolute  in  form,  purporting  to  be  made  upon 
a  sale  of  the  property  for  the  consideration  of  the  $2,000,  and  con- 
tained a  special  covenant  against  the  acts  of  the  grantor  and  parties 
claiming  under  him.  This  loan  was  paid  at  its  maturity,  and  the  deed 
returned  to  the  grantor. 

In  May  following,  the  complainant  borrowed  another  sum  from  the 
defendant,  amounting  to  $1,500,  payable  in  sixty  days,  with  the  same 
rate  of  interest,  and  as  security  for  its  payment  redelivered  to  him  the 
same  deed.  Upon  this  sum  the  interest  was  paid  up  to  the  6th  of  Sep- 
tember following.  The  principal  not  being  paid,  the  defendant  placed 
the  deed  on  record  on  the  7th  of  that  month.  In  January,  1858,  a  party 
claiming  the  squares  under  a  tax  title  brought  two  suits  in  ejectment 
for  their  recovery.  The  defendant  thereupon  demanded  payment  of 
his  loan,  as  he  had  previously  done,  but  without  success. 

On  the  9th  of  February  following,  the  complainant  obtained  from 
the  defendant  the  further  sum  of  $500,  and  thereupon  executed  to  him 
an  instrument  under  seal,  which  recited  that  he  had  previously  sold  and 
Btjrd.Cas.Real  PEor. — 27 


418  MORTGAGES 

conveyed  to  the  defendant  the  squares  in  question ;  that  the  sale  and 
conveyance  were  made  with  the  assurance  and  promise  of  a  good  and 
indefeasible  title  in  fee-simple ;  and  that  the  title  was  now  disputed. 
It  contained  a  general  covenant  warranting  the  title  against  all  par- 
ties and  a  special  covenant  to  pay  and  refund  to  the  defendant  the 
costs  and  expenses,  including  the  consideration  of  the  deed,  to  which 
he  might  be  subjected  by  reason  of  any  claim  or  litigation  on  account 
of  the  premises.  Accompanying  this  instrument,  and  bearing  the  same 
date,  the  complainant  gave  the  defendant  a  receipt  for  $2,000,  purport- 
ing to  be  in  full  for  the  purchase  of  the  land. 

The  question  presented  for  determination  is  whether  these  instru- 
ments, taken  in  connection  with  the  testimony  ol  the  parties,  had  the 
effect  of  releasing  the  complainant's  equity  of  redemption.  It  is  in- 
sisted by  him  that  the  $500  advanced  at  the  time  was  an  additional 
loan,  and  that  the  redelivered  deed  was  security  for  the  $2,000,  as 
it  had  previously  been  for  the  $1,500.  It  is  claimed  by  the  defend- 
ant that  this  money  was  paid  for  a  release  of  the  equity  of  redemption 
which  the  complainant  offered  to  sell  for  that  sum,  and  at  the  same 
time  to  warrant  the  title  of  the  property  and  indemnify  the  defend- 
ant against  loss  from  the  then  pending  litigation. 

It  is  an  established  doctrine  that  a  court  of  equity  will  treat  a 
deed,  absolute  in  form,  as  a  mortgage,  when  it  is  executed  as  security 
for  a  loan  of  money.  That  court  looks  beyond  the  terms  of  the  in- 
strument to  the  real  transaction ;  and  when  that  is  shown  to  be  one  of 
security,  and  not  of  sale,  it  will  give  eft'ect  to  the  actual  contract  of  the 
parties.  As  the  equity,  upon  which  the  court  acts  in  such  cases  arises 
from  the  real  character  of  the  transaction,  any  evidence,  written  or 
oral,  tending  to  show  this  is  admissible.  The  rule  which  excludes  parol 
testimony  to  contradict  or  vary  a  written  instrument  has  reference  to 
the  language  used  by  the  parties.  That  cannot  be  qualified  or  varied 
from  its  natural  import,  but  must  speak  for  itself.  The  rule  does  not 
forbid  an  inquiry  into  the  object  of  the  parties  in  executing  and  re- 
ceiving the  instrument.  Thus,  it  may  be  shown  that  a  deed  was  made 
to  defraud  creditors,  or  to  give  a  preference,  or  to  secure  a  loan,  or  for 
any  other  object  not  apparent  on  its  face.  The  object  of  parties  in 
such  cases  will  be  considered  by  a  court  of  equity :  it  constitutes  a 
ground  for  the  exercise  of  its  jurisdiction,  which  will  always  be  as- 
serted to  prevent  fraud  or  oppression,  and  to  promote  justice.  Hughes 
V.  Edwards,  9  Wheat.  489,  6  L.  Ed.  142;  Russell  v.  Southard"",  12 
How.  139,  13  L.  Ed.  927;  Taylor  v.  Luther,  2  Sumn.  228,  Fed.  Cas. 
No.  13796;  Pierce  v.  Robinson,  13  Cal.  116. 

It  is  also  an  established  doctrine  that  an  equity  of  redemption  is  in- 
separably connected  with  a  mortgage ;  that  is  to  say,  so  long  as  the 
instrument  is  one  of  security,  the  borrower  has  in  a  court  of  equity  a 
right  to  redeem  the  property  upon  payment  of  the  loan.  This  right 
cannot  be  waived  or  abandoned  by  any  stipulation  of  the  parties  made 
at  the  time,  even  if  embodied  in  the  mortgage.    This  is  a  doctrine  from 


FORM   OF   MORTGAGES  419 

which  a  court  of  equity  never  deviates.  Its  maintenance  is  deemed  es- 
sehtTaTto  the  protection  of  the  debtor,  who,  under  pressing  necessities, 
will  often  submit  to  ruinous  cojnditions,  expecting  or  hoping  to  be  able 
to  repay  the  loan  at  its  maturity,  and  thus  prevent  the  conditions  from 
being  enforced  and  the  property  sacrificed. 

A  subsequent  release  of  the  equity  of  redemption  may  undoubtedly 
be  made  to  the  mortgagee.  There  is  nothing  in  the  policy  of  the  law 
which  forbids  the  transfer  to  him  of  the  debtor's  interest.  The  trans- 
action will,  however,  be  closely  scrutinized,  so  as  to  prevent  any  op- 
pression of  the  debtor.  Especially  is  this  necessary,  as  was  said  on 
one  occasion  by  this  court,  when  the  creditor  has  shown  himself  ready 
and  skilful  to  take  advantage  of  the  necessities  of  the  borrower.  Rus- 
sell v.  Southard,  supra.  Without  citing  the  authorities,  it  may  be  stat- 
ed as  conclusions  from  them,  that  arelease  to  the  mortgagee  will  not 
be  inferred  from  equivocal  circumstances  and  loose  expressions.  It 
must  appear  by  a  writing  importing  in  terms  a  transfer  of  the  mort- 
gagor's interest  or  such  facts  must  be  shown  as  will  operate  to  estop 
him  from  asserting  any  interest  in  the  premises.  The  release  must 
also  be  for  an  adequate  consideration ;  that  is  to  say,  it  must  be  for  a 
consideration  which  would  be  deemed  reasonable  if  the  transaction 
were  between  other  parties  dealing  in  similar  property  in  its  vicinity. 
Any  marked  undervaluation  of  the  property  in  the  price  paid  will 
vitiate  the  proceeding. 

If,  now,  we  apply  these  views  to  the  question  before  us,  it  will  not 
be  difficult  of  solution.  It  is  admitted  that  the  deed  of  the  complain- 
ant was  executed  as  security  for  the  loan  obtained  by  him  from  the 
defendant.  It  is,  therefore,  to  be  treated  as  a  mortgage,  as  much  so  as 
if  it  contained  a  condition  that  the  estate  should  revert  to  the  grantor 
upon  payment  of  the  loan.  There  is  no  satisfactory  evidence  that  the 
equity  of  redemption  was  ever  released.  The  testimony  of  the  parties 
is  directly  in  conflict  both  being  equally  positive, — the  one,  that  the 
advance  of  $500  in  February,  1858,  was  an  additional  loan;  and  the 
other,  that  it  was  made  in  purchase  of  the  mortgagor's  interest  in  the 
property.  The  testimony  of  the  defendant  with  reference  to  other 
matters  connected  with  the  loan  is,  in  several  essential  particulars, 
successfully  contradicted.  His  denial  of  having  received  the  instal- 
ments of  interest  prior  to  September,  1857,  and  his  hesitation  when 
paid  checks  for  the  amounts  with  his  indorsement  were  produced, 
show  that  his  recollection  cannot  always  be  trusted. 

Aside  from  the  defective  recollection  of  the  creditor,  there  are  sev- 
eral circumstances  tending  to  support  the  statement  of  the  mortgagor. 
One  of  them  is  that  the  value  of  the  property  at  the  time  of  the  al- 
leged release  was  greatly  in  excess  of  the  amount  previously  secured 
with  the  additional  $500.  Several  witnesses  resident  at  the  time  in 
Washington,  dealers  in  real  property,  and  familiar  with  that  in  con- 
troversy and  similar  property  in  its  vicinity,  place  its  value  at  treble 


420  MORTGAGES 

that  amount.  Some  'of  them  place  a  still  higher  estimate  upon  it.  It 
is  not  in  accordance  with  the  usual  course  of  parties,  when  no  fraud 
is  practised  upon  them  and  they  are  free  in  their  action,  to  surrender 
their  interest  in  property  at  a  price  so  manifestly  inadequate.  The  tax 
title  existed  when  the  deed  was  executed,  and  it  was  not  then  con- 
sidered of  any  validity.  The  experienced  searcher  who  examined  the 
records  pronounced  it  worthless,  and  so  it  subsequently  proved. 

Another  circumstance  corroborative  of  the  statement  of  the  mort- 
gagor is,  that  he  retained  ^possession  of  the  property  after  the  time 
of  the  alleged  release,  enclosed  it,  and  either  cultivated  it  or  let  it  for 
cultivation,  until  the  enclosure  was  destroyed  by  soldiers  at  the  com- 
mencement of  the  war  in  1861.  Subsequently  he  leased  one  of  the 
squares,  and  the  tenant  erected  a  building  upon  it.  The  defendant  did 
not  enter  into  possession  until  1865.  These  acts  of  the  mortgagor 
justify  the  conclusion  that  he  never  supposed  that  his  interest  in  the 
property  was  gone,  whatever  the  mortgagee  may  have  thought.  Par- 
ties do  not  usually  enclose  and  cultivate  property  in  which  they  have 
no  interest. 

The  instrument  executed  on  the  9th  of  February,  1858,  and  the  ac- 
companying receipt,  upon  which  the  defendant  chiefly  relies,  do  not 
change  the  original  character  of  the  transaction.  That  instrument  con- 
tains only  a  general  warranty  of  the  title  conveyed  by  the  original 
deed,  with  a  special  covenant  to  indemnify  the  grantee  against  loss 
from  the  then  pending  litigation.  It  recites  that  the  deed  was  executed 
upon  a  contract  of  sale  contrary  to  the  admitted  fact  that  it  was  given 
as  security  for  a  loan.  The  receipt  of  the  $2,000,  purporting  to  be  the 
purchase-money  for  the  premises,  is  to  be  construed  with  the  instru- 
ment, and  taken  as  having  reference  to  the  consideration  upon  which 
the  deed  had  been  executed.  That  being  absolute  in  terms,  purporting 
on  its  face  to  be  made  upon  a  sale  of  the  property,  the  other  papers 
referring  to  it  were  drawn  so  as  to  conform  with  those  terms.  They 
are  no  more  conclusive  of  any  actual  sale  of  the  mortgagor's  interest 
than  the  original  deed.  The  absence  in  the  instrument  of  a  formal 
transfer  of  that  interest  leads  to  the  conclusion  that  no  such  transfer 
was  intended. 

We  are  of  opinion  that  the  complainant  never  conveyed  his  interest 

',in  the  property  in  controversy  except  as  security  for  the  loan,  and 

that  his  deed  is  a  subsisting  security.     He  has,  therefore,  a  right  to 

redeem  the  property  from  the  mortgage.     In  estimating  the  amount 

due  upon  the  loan,  interest  only  at  the  rate  of  six  per  cent  per  annum 

j    will  be  allowed.    The  extortionate  interest  stipulated  was  forbidden  by 

I     statute,  and  would,  in  a  short  period,  have  devoured  the  whole  estate. 

I     The  defendant  should  be  charged  with  a  reasonable  sum  for  .the  use 

and  occupation  of  the  premises  from  the  time  he  took  possession  ir 

1865,  and  allowed  for  the  taxes  paid  and  other  necessary  expenses 

incurred  by  him. 


FORM   OF   MORTGAGES  421 

The  decree  of  the  Supreme  Court  of  the  District  must  be  reversed, 
and  the  cause  remanded  for  further  proceedings,  in  accordance  with 
this  opinion;  and  it  is  so  ordered. 


MOONEY  V.  BYRNE. 
(Court  of  Appeals  of  New  York,  1900.     163  N.  Y.  86,  57  N.  E.  163.) 

Appeal  from  supreme  court,  appellate  division.  Second  Department. 

Action  by  Mary  J.  Mooney  against  Anastasia  Byrne  and  others. 
From  a  judgment  of  the  appellat©' division  in  favor  of  defendants 
(15  AppTDiv.  624,  44  N.  Y.  Supp!  1124),  plaintiff  appeals.    Reversed. 

Vann  J.  The  case  made  by  the  complaint  was  that  of  a  mortgagor 
with  a  right  to  redeem  from  a  mortgagee  or  his  devisees  in  posses- 
sion. The  defendants  denied  that  there  was  any  mortgage,  alleged 
an  absolute  conveyance  from  the  plaintiff  to  one  Owen  Byrne,  and 
a  subsequent  conveyance  from  the  latter  to  a  bona  fide  purchaser. 
They  also  pleaded  the  statute  of  limitations,  and  specified  the  period 
of  six  and  ten  years  as  the  limit  exceeded  by  the  plaintiff  in  bring- 
ing her  action.  The  facts  agreed-  upon  by  the  parties  and  admitted 
by  the  pleadings  are  in  substance  as  follows : 

On  the  14th  of  August,  1878,  the  plaintiff  owned  and  was  in  pos- 
session of  a  parcel  of  land  in  the  city  of  New  York  worth  $10,000 
and  upward,  and  at  the  same  time  she  was  indebted  to  Owen  Byrne 
in  the  sum  of  about  $3,000,  secured  by  three  mortgages  on  said  prem- 
ises, which  were  under  process  of  foreclosure.  In  order  to  secure 
the  payment  of  this  indebtedness  she  conveyed  the  land  to  said  Byrne 
at  his  request  by  a  deed  dated  on  the  day  last  named  and  duly  re- 
corded. "The  said  deed  was  given  as  security,"  and  for  no  other 
purpose.  It  contained  full  covenants,  subject  to  said  mortgages,  which, 
as  it  was  declared,  "shall  not  merge  in  the  fee,  but  shall  remain 
valid  and  subsisting  liens."  Said  Byrne  at  the  same  time  gave  back 
a  defeasance  of  even  date,  whereby  he  agreed  to  reconvey  to  the 
plaintiff  upon  the  payment  to  him,  within  one  year,  of  said  indebted- 
ness, certain  advances  which  he  agreed  to  make  for  her  benefit,  and 
the  costs  of  the  foreclosure  proceedings.  It  was  stipulated  that  she 
should  be  relieved  from  personal  liability  on  the  bonds,  and  that  no 
judgment  for  deficiency  should  "be  claimed  or  entered  against  her  in 
any  action  that  may  be  taken  upon  said  bonds  or  mortgages,  so  long 
as  she  and  all  persons  claiming  under  her  shall  not  dispute  or  contest 
the  title  of  the"  said  Byrne  "or  his  assigns  to  said  mortgaged  prem- 
ises, or  the  amounts  due  him  on  said  mortgages.  *  *  *  "  Said  in- 
strument also  provided  "that,  as  to  the  agreement  by  the"  said  Byrne 
"to  reconvey  said  premises,  time  is  of  the  essence  thereof,  and,  fur- 
ther, that. this  instrument  shall  not  be  recorded  by  or  on  behalf  of  the" 
plaintiff,  "and  that  for  a  violation  of  this  provision,  this  agreement, 


122  MORTGAGES 

SO  far  as  the  same  provides  for  such  reconveyance,  shall  thereupon 
become  utterly  null  and  void."  The  defeasance  was  never  recorded. 
Said  Byrne  at  once  took  possession  of  the  premises,  and  remained  in 
,possession  thereof  until  the  13th  of  June,  1881,  when  he  conveyed 
to  one  \\'alker  by  a  deed  duly  recorded,  but  "said  conveyance  was 
made  without  the  consent  of  the  plaintiff,  who  had  no  knowledge  of 
it  until  this  action  was  begun"  on  the  7th  of  March,  1895. 

Said  Byrne  died  on  the  11th  of  January,  1889,  leaving  a  will  by 
which  he  gave  all  his  property,  real  and  personal,  to  the  defendants. 
His  executor  accounted,  and  has  been  discharged,  and  the  property 
of  the  testator  has  been  delivered  to  the  defendants.  The  plaintiff 
claimed  that  the  rents  and  profits  of  the  premises  received  by  Byrne 
amounted  to  more  than  the  principal  and  interest  of  the  debt  secured. 
She  alleged  in  her  complaint  that,  if  Byrne  had  conveyed  the  prem- 
ises to  any  one,  such  conveyance  was  made  without  her  knowledge 
or  consent.  She  demanded  an  accounting  as  to  the  amount  due  from 
her,  and  that  she  might  "be  at  liberty  to  redeem  said  mortgaged  prem- 
ises upon  payment  of  whatever  may  upon  such  accounting  be  found 
due,  which  this  plaintiff  hereby  offers  to  pay,"  and  that  the  defend- 
ants be  compelled  to  convey  said  premises  to  her.  She  also  demanded 
alternative  and  general  relief.  Said  Walker,  who  still  owns  the  prem- 
ises, was  not  made  a  party  to  the  action.  The  trial  judge  dismissed 
the  complaint  upon  the  ground  that  "the  statute  of  limitations  is  a 
conclusive  defense,"  and  the  appellate  division  affirmed,  on  an  opin- 
ion rendered  in  overruling  a  demurrer  to  the  answer,  when  the  case 
was  in  the  First  department,  15  App.  Div.  624,  44  N.  Y.  Supp.  1124; 
and  1  App.  Div.  316,  37  N.  Y.  Supp.  388. 

The  facts  agreed  upon  show  that  there  was  a  mortgage;  for  a 
deed,  although  absolute  on  its  face,  when  given  as  security  only,  is 
a  mortgage  by  operation  of  law.  Horn  v.  Keteltas,  46  N.  Y.  605  ; 
Meehan  v.  Forrester,  52  N.  Y.  277 ;  Odell  v.  Montross,  68  N.  Y.  499 : 
Barry  v.  Insurance  Co.,  110  N.  Y.  1,  5,  17  N.  E.  405;  Kraemer  v. 
Adelsberger,  122  N.  Y.  467,  25  N.  E.  859;  Macauley  v.  Smith,  132 
N.  Y.  524,  30  N.  E.  997;  15  Am.  &  Eng.  Enc.  Law,  791;  1  Rev. 
St.  p.  756,  §  3 ;  Laws  1896,  c.  547,  §  269.  While  there  was  no  cove- 
nant to  pay  the  debt,  none  was  needed,  for  the  property  was  worth 
much  more  than  the  amount  of  the  indebtedness,  and  the  mortgagee 
could  safely  confine  his  remedy  to  the  land.  1  Rev.  St.  p.  739.  The 
absence  of  such  a  covenant,  the  conditional  release  of  any  claim  for 
deficiency,  and  the  agreement  not  to  record  the  defeasance,  are  of 
no  importance,  in  view  of  the  express  admission  that  the  deed  was 
given  as  security.  The  deed  and  defeasance  were  executed  at  the  same 
time,  and,  as  the  latter  in  express  terms  refers  to  the  former,  they  must 
be  construed  the  same  as  if  both  were  embodied  in  a  single  instru- 
ment. When  read  together  in  the  light  of  the  admission  tliat  the 
object  was  to  secure  a  debt,  it  is  clear  that  the  transaction  was  not 


FOEM    OF   MORTGAGES  423 

a  conditional  sale,  and  that  the  covenant  making  time  the  essence  of 
the  contract  to  reconvey  has  no  more  effect  than  if  it  occurred  in  Vne 
defeasance  clause  of  an  ordinary  mortgage.  An  instrument  executed 
simply  as  security  cannot  be  turned  into  a  conditional  sale  by  the 
form  of  a  covenant  to  reconvey,  and,  even  if  there  was  a  doubt  as  to 
the  meaning,  the  contract  would  be  regarded  as  a  mortgage,  so  as 
to  avoid  a  forfeiture,  which  the  law  abhors.  IMatthews  v.  Sheehan, 
69  N.  Y,  585.  As  was  said  by  the  supreme  court  of  the  Ignited  \ 
States :  "It  is  an  established  doctrine  that  a  court  of  equity  will  treat 
a  deed  absolute  in  form  as  a  mortgage  when  it  is  executed  as  se-  ! 
jcurity  for  a  loan  of  money.  That  court  looks  beyond  the  terms  of 
the  instrument  .to  the  real  transaction,  and  when  it  is  shown  to  be 
one  of  security,  and  not  of  sale,  it  will  give  effect  to  the  actual  con- 
tract of  the  parties.  *  *  *  It  is  also  an  established  doctrine  that 
an  equity  of  redemption  is  inseparably  connected  with  a  mortgage ; 
that  is  to  say,  so  long  as  the  instrument  is  one  of  security,  the  bor- 
rower has,  in  a  court  of  equity,  a  right  to  redeem  the  property  upon 
payment  of  the  loan.  This  right  cannot  be  waived  or  abandoned  by 
any  stipulation  of  the  parties  made  at  the  time,  even  if  embodied  in 
the  mortgage.  This  is  a  doctrine  from  which  a  court  of  equity  never 
deviates."     Peugh  v.  Davis,  96  U.  S.  332,  336,  24  L.  Ed.  775. 

The  right  to  redeem  is  an  essential  part  of  a  mortgage,  read  in  by  the 
law,  if  not  inserted  by  the  parties.  Although  many  attempts  have  been 
made,  no  form  of  covenant  has  yet  been  devised  that  will  cut  off  the 
right  of  a  mortgagor  to  redeem,  even  after  the  law  day  has  long 
passed  by.  Clark  v.  Henry,  2  Cow.  324,  331;  Jones,  Mortg.  §  1039. 
Even  an  express  stipulation  not  to  redeem  does  not  prevent  redemp- 
tion, because  the  right  is  created  by  law.  For  the  same  reason  an  ex- 
press power  to  sell  at  private  sale  after  default  is  of  no  eft'ect.  "If," 
said  Chancellor  Kent,  "a  freehold  estate  be  held  by  way  of  mortgage  / 
for  a  debt,  then  it  may  be  laid  down  as  an  invariable  rule  that  the  ,/ 
creditor  must  first  obtain  a  decree  for  a  sale  under  a  bill  of  fore-  , 
closure.  There  never  was  an  instance  in  which  the  creditor,  holding 
land  in  pledge,  was  allowed  to  sell  at  his  own  will  and  pleasure.  It 
would  open  the  door  to  the  most  shameful  imposition  and  abuse." 
Hart  V.  Ten  Eyck,  2  Johns.  Ch.  62,  100.  The  utmost  effect  claimed 
for  the  provision  that  the  defeasance  was  not  to  be  recorded  is  that 
it  was  a  consent  to  a  private  sale  after  default.  As  was  well  said 
by  a  recent  writer:  "If  the  instrument  is  in  its  essence  a  mortgage,^ 
the  parties  cannot  by  any  stipulation,  however  express  and  positive, 
render  it  anything  but  a  mortgage,  or  deprive  it  of  the  essential  at- 
tributes belonging  to  a  mortgage  in  equity.  The  debtor  or  mortgagor 
cannot,  in  the  inception  of  the  instrument,  as  a  part  of  or  collateral 
to  its  execution,  in  any  manner  deprive  himself  of  his  equitable  right 
to  come  in  after  a  default  in  paying  the  money  at  the  stipulated  time, 
and  to  pay  the  debt  and  interest,  and  thereby  to  redeem  the  land 


424  MORTGAGES 

from  the  lien  and  incumbrance  of  the  mortgage.  The  equitable  right 
of  redemption  after  a  default  is  preserved,  remains  in  full  force,  and 
will  be  protected  and  enforced  by, a  court  of  equity,  no  matter  what 
stipulations  the  parties  may  have  made  in  the  original  transaction 
purporting  to  cut  off  this  right."  3  Pom.  Eq.  Jur.  §  1193.  So  Mr. 
Thomas  says  that  "it  was  a  bold,  but  necessary,  decision  of  equity 
that  a  debtor  could  not,  even  by  the  most  solemn  engagements  entered 
into  at  the  time  of  the  loan,  preclude  himself  from  his  right  to  re- 
deem." Thom.  Mortg.  §  9.  To  prevent  undue  advantage  through 
inadequacy  of  consideration,  either  with  or  without  an  opportunity 
to  repurchase,  the  courts  are  steadfast  in  holding  that  a  conveyance, 
whatever  its  form,  if  in  fact  given  to  secure  a  debt,  .is  neither  an  ab- 
solute nor  a  conditional  sale,  but  a  mortgage,  and  that  the  grantor 
and  grantee  have  merely  the  rights,  and  are  subject  only  to  the  ob- 
ligations, of  mortgagor  and  mortgagee.  Lawrence  v.  Trust  Co.,  13 
N.  Y.  200. 

In  the  case  before  us  there  was  no  purchase  of  the  land  by  Owen 
Byrne,  for  the  existing  relation  of  debtor  and  creditor  between  him- 
self and  the  plaintiff  was  not  ended,  but  was  continued  by  a  con- 
tract intended  to  secure  the  old  debt,  together  with  some  further  ad- 
vances. He  had  a  lien  on,  but  no  estate  in,  the  land.  Thorn  v.  Suth- 
erland, 123  N.  Y.  236,  25  N.  E.  362 ;  Hubbell  v.  Moulson,  53  N.  Y. 
225,  228,  13  Am.  Rep.  519.  She  had  the  right  to  redeem,  and  he 
the  right  to  hold  the  land  until  she  redeemed,  or  her  right  of  redemp- 
tion was  cut  off  by  the  judgment  of  a  court  of  competent  jurisdic- 
tion. The  continued  existence  of  the  debt  is  the  birthmark  of  a 
mortgage,  and  that  is  involved  in  the  concession  that  the  land  was 
conveyed  as  security.  The  passing  of  the  law  day  did  not  extinguish 
"her  right,  for  "once  a  mortgage  always  a  mortgage"  is  a  maxim  so 
sound  and  ancient  as  to  be  a  rule  of  property.  As  the  deed  was  a 
mortgage  when  given,  it  did  not  cease  to  be  a  mortgage  after  the 
period  of  redemption  had  expired.  In  Macauley  v.  Smith,  supra,  it 
was  held  that  the  surrender  of  possession  by  the  grantor  to  the  gran- 
tee after  the  debt  became  due  did  not  prevent  the  levy  of  an  attach- 
ment, issued  in  behalf  of  creditors  of  the  former,  upon  lands  con- 
veyed to  the  latter  as  security.  The  plaintiff",  therefore,  is  a  mort- 
gagor, whose  right  to  redeem  from  the  mortgagee  in  possession  has 
not  been  cut  off  nor  cut  down  by  any  act  or  omission  on  her  part. 

As  the  defendants  stand  in  the  shoes  of  Owen  Byrne,  with  no 
rights  except  by  way  of  gift  under  his  will,  the  case  is  the  same  in 
principle  as  if  he  were  living  and  the  sole  defendant.  After  the 
plaintiff  had  established  her  right  to  redeem,  as  to  him,  what  answer 
could  he  make  thereto?  Would  it  be  an  answer  for  him  to  say,  "I 
have  conveyed  the  lands  away,  and  therefore  you  cannot  redeem"? 
\\'hile  this  would  be  a  conclusive  answer  in  behalf  of  Walker,  the 
present  owner  of  the  land,  if  he  had  been  made  a  party,  and  the 


FOKM    or   MORTGAGES  425 

right  to  redeem  had  been  asserted  against  him,  can  Owen  Byrne  or 
his  devisees  say  that,  by  his  wrongful  act  in  conveying  the  land,  he 
deprived  the  plaintiff  of  the  right  to  redeem  in  any  form,  and  con- 
fined her  to  an  action  for  the  moneys  received  on  the  sale,  to  which 
the  statute  of  limitations  would  be  a  bar?  Can  a  mortgagee,  by  his 
own  act,  without  a  judicial  sale  or  the  consent  of  the  mortgagor, 
destroy  the  right  to  redeem,  which  is  so  carefully  guarded  by  the 
courts?  The  mortgagee  could  not,  by  selling  the  mortgaged  prem- 
ises, change  the  rights  of  the  plaintiff  as  against  himself.  As  to  him, 
she  still  has  the  right  to  redeem;  for  by  his  act,  without  her  knowl- 
edge or  consent,  he  could  not  annul  his  covenant  to  reconvey.  That 
covenant  is  still  in  force,  and  the  plaintiff  may  compel  its  perform- 
ance, so  far  as  the  rights  of  third  parties  acquired  under  the  record- 
ing act  will  permit.  • 

As  Owen  Byrne  conveyed  to  a  bona  fide  purchaser,  the  plaintiff 
cannot  follow  the  land  as  such;  but  she  is  not  prevented  by  that 
wrongful  act  from  any  form  of  redemption  now  practicable.  No  act 
of  his  could  utterly  destroy  her  cause  of  action  to  redeem.  He  might 
affect  its  value,  but  he  could  not  take  its  life.  As  a  substitute  for  a 
decree  requiring  him  to  repurchase  the  land  and  convey  it  to  her, 
which'  might  be  impossible,  and  would  be  apt  to  involve  hardship,  she 
may  treat  the  value  of  the  land,  measured  in  money  presumed  to  be 
in  his  hands  when  her  right  to  redeem  was  established,  as  land,  and 
enforce  the  right  of  redemption  accordingly.  Unless  we  virtually 
sanction  his  wrongdoing  by  permitting  him  to  defeat  her  right  of  re- 
demption absolutely  by  his  own  act,  upon  showing  a  right  to  redeem, 
she  must  be  permitted  to  make  the  best  redemption  possible  as  against 
him.  Because  he  has  put  it  out  of  his  power  to  render  to  her  all  she 
is  entitled  to,  he  cannot  refuse  to  make  the  nearest  approach  to  it 
that  is  left.  A  court  of  equity,  in  order  to  bring  about  an  equitable 
result,  disregards  forms,  and  treats  money  as  land  and  land  as  money, 
when  required  to  prevent  injustice.  A  mortgagee  in  possession  un- 
der a  recorded  deed  absolute  on  its  face,  with  an  unrecorded  defea- 
sance, cannot  sell  the  land  and  claim  that  the  purchase  price  is  money, 
as  against  one  who  has  an  equitable  right  to  insist  that  in  legal  effect 
it  is  land. 

As  the  plaintiff  established  a  right  to  redeem,  Owen  Byrne  and  his 
devisees  cannot  complain  if,  in  working  out  the  relief  required  by 
the  violation  of  his  covenant,  the  court  does  the  best  it  can  to  right 
the  wrong  by  treating  the  money  as  land.  In  order  to  prevent  him 
from  making  a  profit  out  of  his  wrong,  the  law  raises  the  presump- 
tion that  he  now  has  the  full  value  of  the  land  as  a  separate  fund 
in  his  hands,  and,  treating  it  as  land,  allows  the  plaintiff  to  redeem, 
the  same  as  if  it  were  in  fact  land.  As  against  the  wrongdoer  and 
his  estate,  it  will  exert  all  its  power  to  make  the  plaintiff  whole,  pay- 
ing due  regard  to  equities  arising  through  improvements  upon  the 


426  MORTGAGES 

land,  so  as  not  to  give  her  more  than  she  is  equitably  entitled  to. 
Thus,  in  JNIeehan  v.  Forrester,  supra,  the  court  through  Rapallo,  J., 
said :  "The  sale  was  shown  to  have  been  made  without  the  consent 
of  Aleehan,  and  in  violation  of  his  rights,  and  it  does  not  appear  that 
the  plaintiff  ever  had  notice  of  it.  He  was  not  bound  by  such  a  sale. 
He  was  entitled  to  his  land,  on  payment  of  the  amount  due  to  Ber- 
tine  or  his  representatives.  If  Bertine,  by  reason  of  his  own  wrong- 
ful act,  had  deprived  himself  of  the  ability  to  restore  the  land,  to 
which  the  plaintiff  is  equitably  entitled,  he  or  his  representatives  were 
bound  to  account  to  the  plaitift",  at  his  election,  either  for  the  pro- 
ceeds of  sale  of  the  land,  or  its  value  at  the  time  when  the  plaintift"s 
right  to  such  reparation  was  established.  Hart  v.  Ten  Eyck,  2  Johns. 
Ch.  117;  Peabody  v.  Tarbell,  2  Cush.  [:Mass.]  227,  233;  ^lay  v.  Le 
Claire,  11  Wall.  236,  237,  20  L.  Ed.  50." 

In  that  case,  as  in  this,  the  only  cause  of  action  alleged  or  proved 
was  the  right  to  redeem ;  but,  as  the  premises  had  been  wrongfully 
conveyed,  the  plaintiff",  upon  establishing  such  right,  was  awarded 
compensation  on  the  basis  of  value  at  the  time  of  the  trial.  Com- 
pensation was  allowed  as  an  equitable  substitute  for  actual  redemp- 
tion. In  other  words,  the  land  which  should  have  been  conveyed 
was  appraised  by  the  court,  and  the  defendant  compelled  to  restore 
the  amount  of  the  appraisal,  as  the  only  method  of  redemption  pos- 
sible. The  form  of  relief  granted  was  a  money  judgment,  but  that 
was  possible  only  because  a  right  to  redeem  had  been  established, 
for  without  that  right  the  relief  would  be  limited  to  the  proceeds  of 
the  sale.  Baily  v.  Hornthal,  154  N.  Y.  648,  661,  49  N.  E.  56,  61 
Am.  St.  Rep.  645.  So  in  the  case  at  bar,  the  plaintiff  estabhshed  the 
same  right,  but  the  defendant  showed  that  he  had  placed  it  beyond 
his  power  to  reconvey.  Thereupon,  in  rebuttal,  and  not  as  a  part 
of  her  cause  of  action,  the  plaintiff'  had  the  right  to  prove  the  pres- 
ent value  of  the  land,  so  as  to  follow  the  money  presumed  to  be  in 
the  defendant's  hands,  and  redeem  that  which  he  had  wrongfully  sub- 
stituted for  the  land,  the  same  as  if  it  were  in  fact  land. 

Guided  by  the  cardinal  principle  that  the  wrongdoer  shall  make 
nothing  from  his  wrong,  equity  so  molds  and  applies  its  plastic  rem- 
edies as  to  force  from  him  the  most  complete  restitution  which  his 
wrongful  act  will  permit.  May  v.  Le  Claire,  11  Wall.  217,  20  L. 
Ed.  50;  Van  Dusen  v.  Worrell,  4  Abb.  Dec.  473;  Miller  v.  Mc- 
Guckin,  15  Abb.  N.  C.  204;  Hart  v.  Ten  Eyck,  2  Johns.  Ch.  62,  108: 
Enos  V.  Sutherland,  11  Mich.  538,  542;  Budd  v.  Van  Orden,  33 
N.  J.  Eq.  143;  Van  Orden  v.  Budd,  33  N.  J.  Eq.  564.  When  he 
cannot  restore  the  land,  it  will  compel  him  to  restore  that  which  stands 
in  his  hands  for  the  land,  and  will  not  permit  him  to  assert  that  it  is 
not  land,  when  the  assertion  would  be  profitable  to  himself,  but  un- 
just to  the  one  whom  he  wronged.  He  cannot  escape  by  offering  to 
pay  what  he  received  on  selling  the  lands,  but  must  pay  the  value  at 


FORM    OF   MORTGAGES  427 

the  time  of  the  trial.  He  cannot  cut  off  the  right  of  rejdemption,  and 
convert  it  into  a  personal  liability ;  for  he  is  still  a  mortgagee;  and 
subject,  as  such,  to^  the  mortgagors  rights.  The  fact  that  the  injured 
mortgagor  need  not  take  the  proceeds  of  the  sale,  but  may  insist  on 
the  proved  value  of  the  land,  as  well  as  the  pleadings  and  proofs, 
shows  that  this  is  a  pure  action  to  redeem,  and  must  be  so  regarded 
for  all  purposes,  including  the  defense  of  the  statute  of  limitations. 
While  the  mortgagor  is  helpless  as  against  his  grantee,  she  is  not 
helpless  as  against  him. 

The  defendants  insist  that,  as  the  plaintiff  can  only  recover  a  money 
judgment,  the  cause  of  action  is  in  the  nature  of  an  accounting  for 
money  had  and  received,  and  hence  that  the  6-year,  or  at  most  the 
10-year,  statute  of  limitations  is  a  bar.  This  is  not  an  action,  how- 
ever, to  recover  money,  but  to  redeem  land  from  a  mortgage,  and 
but  for  the  misconduct  of  the  defendant  would  have  resulted  simply 
in  a  judgment  of  redemption,  with  an  accounting  for  the  rents  and 
profits  of  the  land,  after  payment  of  the  debt  by  the  plaintiff,  accord- 
ing to  her  demand  and  offer  before  the  commencement  of  the  action. 
The  period  of  limitation  provided  by  the  Code,  within  which  an  ac- 
tion to  redeem  from  a  mortgage  may  be  maintained,  is  20  years  after 
breach  of  the  condition  or  the  nonfulfillment  of  the  covenant  therein 
contained.  Code  Civ.  Proc.  §  379.  So  far  as  the  defendants  are  con- 
cerned, the  plaintiff  had  a  right  to  redeem.  She  brought  her  action 
to  redeem,  and  established  it  by  evidence,  and  was  entitled  to  judg- 
ment accordingly;  but  as  that  judgment  would  be  ineffectual,  be- 
cause the  mortgagee  had  sold  the  land,  equity  will  simply  vary  its 
relief  from  a  judgment  of  redemption  in  land  to  a  judgment  of  re- 
demption in  money  representing  the  land. 

If  the  plaintiff  had  not  elected  to  redeem,  but  to  sue  for  money 
had  and  received  to  her  use,  the  case  of  Mills  v.  Mills,  115  N.  Y. 
80,  21  N.  E.  714,  relied  upon  by  the  defendants,  might  be  an  author- 
ity. In  that  case,  however,  as  was  stated  by  this  court,  "all  the  relief 
asked  for  in  the  complaint  is  an  accounting,  and  a  judgment  for  a 
sum  of  money,  and  no  other  relief  was  needed  or  possible  upon  the 
facts  established.  This  was  in  nO'  sense  an  action  to  redeem,  as  there 
was  no  mortgage,  and  nothing  to  redeem."  The  relief  demanded, 
as  appears  from  the  appeal  book  on  file  in  this  court,  was  simply  a 
judgment  "for  all  moneys  received  by"  the  defendant.  No  claim  was 
made  that  the  two  transactions,  which  were  4  years  apart,  constituted 
a  mortgage,  or  that  there  was  ever  a  right  to  redeem.  The  theory 
of  the  action  was  that  the  defendant  lawfully  sold  the  land,  and  should 
account  for  the  proceeds,  after  deducting  his  own  claim.  Thus  the 
court  said:  "Absolute  title  to  the  lands  was  vested  in  the  defendant, 
evidently  with  the  intention  that  he  might  sell  them  and  reimburse 
himself,  and  pay  over  any  surplus  to  his  brother."  The  fundamental 
fact  that  the  defendant  sold  without  right  was  wanting  in  that  case, 


428  MORTGAGES 

and  hence  the  principle  which  is  the  basis  of  our  judgment  could 
not  be  applied.  It  is  the  wrongful  conveyance  by  the  mortgagee  in 
possession,  under  a  deed  absolute  on  its  face,  that  enables  a  court  of 
equity  to  hold  onto  the  case  after  ordinary  redemption  has  been 
shown  to  be  impossible,  and  to  allow  such  a  redemption  against  the 
ivrongdoer  as  will  prevent  him  from  gaining  by  his  wrong,  and  will 
give  the  plaintiff  her  due  as  nearly  as  may  be.  The  judgment  appealed 
from  should  be  reversed,  and  a  new  trial  granted,  with  costs  to  abide 
event. . 

Parker,  C.  J.,  and  BartlETT,  Martin,  and  We;rner,  JJ.,  concur. 
Gray,  J.,  not  voting.     Cullen,  J.,  not  sitting. 

Judgment  reversed,  etc. 


3.  Mortgage  or  Conditional  SalS 


HOLLADAY  v.  WILLIS. 

(Supreme  Court  of  Appeals  of  Virginia,  1903.     101  Va.  274,  43  S.  E.  616.) 

Appeal  from  Circuit  Court,  Orange  County. 

Action  by  Leah  S.  Willis  against  H.  T.  Holladay  and  another  to 
recover  of  defendant  Holladay  the  difference  between  the  sum  paid 
by  him  for  certain  property  under  a  deed  from  plaintiff  absolute  on 
its  face,  but  alleged  by  her  to  have  been  a  mortgage,  and  the  amount 
received  by  him  on  sale  of  the  property,  and  also  to  compel  defend- 
ant Willis  to  carry  out  her  agreement  to  purchase  the  property.  Judg- 
ment for  plaintiff,  and  defendant  Holladay  appeals.    Reversed. 

Whittle,  J.  This  controversy  arose  as  follows:  Appellee,  Leah 
S.  Willis,  who  was  the  owner  of  a  house  and  lot  near  Charlottes- 
ville, Va.,  on  October  8,  1894,  borrowed  of  the  Iron  Belt  Building  & 
Loan  Association  $800,  and  executed  a  deed  of  trust  on  the  property 
to  secure  it. 

The  house  and  lot  was  occupied  by  appellee,  together  with  her  hus- 
band, H.  G.  Willis,  and  his  parents,  R.  G.  Willis  and  R.  A.  Willis,  as 
a  residence.  At  the  date  of  the  transaction  hereinafter  referred  to, 
R.  G.  Willis  and  R.  A.  Willi's  were  the  owners  of  a  trust  fund  in  the 
hands  of  appellant,  H.  T.  Holladay,  a  brother  of  Mrs.  R.  A.  Willis, 
as  trustee,  the  investment  of  which  was  subject  to  their  control  and 
direction.  Appellee  having  made  default  in  the  payment  of  the  debt 
due  the  association,  for  the  purpose  of  discharging  the  demand  and 
relieving  the  house  and  lot  from  the  deed  of  trust,  and  securing  it  as 
a  home  for  appellee,  it  was  suggested  by  the  elder  Willis  and  wife  that 
so  much  of  the  trust  fund  as  was  necessary  should  be  applied  to  that 
purpose.  Accordingly,  at  their  request,  appellant,  who  lived  at  Rap- 
idan,  Culpeper  county,  Va.,  came  to  Charlottesville,  and  a  conference 
ensued  between  him  and  H.  G.  Willis  and  his  parents  touching  the 


frORM    OF    MORTGAGES  429 

matter  in  hand.  The  scheme  of  paying  the  debt  with  the  trust  fund 
was  discussed,  but  it  was  decided  not  to  be  feasible,  for  the  reason  that 
cash  was  required  to  meet  the  demand  of  the  association,  and  the  trust 
fund  was  not  in  hand,  and  not  due  at  that  time. 

It  appears  that  the  land  representing  that  fund  had  been  sold,  and 
the  purchase  money  ($1,800)  was  payable  in  three  installments  of  $600 
each  in  July,  1896,  1897,  and  1898.  Appellant  was  desirous  to  co- 
operate in  securing  the  property  for  the  parties,  and,  with  that  end  in 
view,  proposed  that  he  would  become  the  absolute  purchaser  of  the 
house  and  lot  for  an  amount  sufficient  to  discharge  the  lien  upon 
it,  and  take  a  deed  from  the  trustees  of  the  association  and  H.  G. 
Willis  and  wife  conveying  the  property  to  him,  and  that  he  would 
thereupon  give  a  written  option  to  Mrs.  R.  A.  Willis  to  purchase  it 
within  two  years  from  the  date  of  the  deed  at  the  price  paid  by  him 
with  interest  and  costs.  In  the  meantime  the  first  and  second  install- 
ments of  the  trust  fund  would  have  matured,  and  supply  the  neces- 
sary means  with  which  to  effect  the  purchase.  This  arrangement  was 
agreed  to  by  the  parties ;  but  appellee,  who  was  represented  by  her 
husband,  was  not  present  during  a  discussion  of  the  details.  -For  that 
reason,  before  the  matter  was  finally  closed,  appellant  sought  an  inter- 
view with  appellee,  and  asked  her  if  she  understood  that  in  selling  the 
property  to  him  she  was  parting  with  her  entire  interest  in  it.  She 
replied  in  the  affirmative ;  as  she  afterward  explains  in  her  deposition, 
her  idea  being  that  the  trust  fund  would  be  available  before  the  ex- 
piration of  the  option  period,  and  that  the  property  would  be  pur- 
chased by  Mrs.  R.  A.  Willis,  and  ultimately  pass  to  H.  G.  Willis  as 
heir  to  his  mother. 

In  pursuance  of  the  plan  agreed  on,  appellant  paid  the  debt  to  the 
association,  and  on  January  22,  1896,  appellee  and  her  husband  united 
with  the  trustees  of  the  association  in  an  absolute  deed  of  bargain 
and  sale,  whereby  they  conveyed  the  house  and  lot  to  him.  ^ 

Subsequently  appellant  executed  the  option  agreement  contemplated, 
by  the  terms  of  which  Mrs.  R.  A.  Willis  was  allowed  two  years  from 
the  date  of  the  deed  within  which  to  purchase  the  house  and  lot  by 
paying  to  appellant  out  of  the  trust  fund  the  amount  of  his  expendi- 
ture, with  interest  and  costs. 

At  the  same  time,  R.  G.  Willis  and  wife  directed  appellant,  as  trus- 
tee, in  writing,  to  invest  as  much  of  the  trust  fund  as  was  necessary, 
under  the  provisions  of  the  option  contract,  in  the  house  and  lot. 

In  pursuance  of  that  direction,  appellant,  in  good  faith,  upon  col- 
lecting the  first  $600  installment  of  the  trust  fund,  applied  it,  as  re- 
quired, toward  the  purchase  of  the  property  for  Mrs.  R.  A.  Willis. 

Thus  matters  remained  until  February,  1897,  when  R.  G.  Willis 
and  R.  A.  Willis  changed  their  minds  in  respect  to  the  purchase  of 
the  Charlottesville  property,  and  directed  the  trustee  to  invest  part  of 
the  trust  fund  in  a  farm  in  Orange  county,  to  repair  the  buildings 


430  MORTGAGES 

thereon,  and  to  supply  the  place  with  necessary  farming  implements, 
and  invest  the  residue  of  the  fund  at  interest. 

It  is  not  pretended  that  appellant  was  in  any  manner  respoiisible  for 
this  change  of  program.  On  the  contrary,  when  apprised  of  it,  he 
frankly  told  the  parties  that,  if  he  carried  out  their  instructions  and 
bought  the  farm,  they  would  have  to  give  up  the  house  and  lot,  as 
their  means  were  insufficient  to  purchase  both.  With  a  thorough  un- 
derstanding of  the  consequences,  they  adhered  to  the  determination 
of  buying  the  farm,  assigning  as  a  reason  for  the  change  that  H.  G. 
Willis  was  not  making  a  support  for  his  family  in  Charlottesville; 
that  he  had  become  very  dissipated,  and  it  was  necessary  to  remove 
him  from  his  then  surroundings.  The  farm  was  accordingly  pur- 
chased, the  Charlottesville  property  was  surrendered  to  appellant,  and 
appellee  and  her  family  and  R.  G.  Willis  and  wife  removed  to  their 
new  home  in  Orange  county.  In  the  following  June — a  year  and  a 
half  after  his  purchase — appellant  sold  the  house  and  lot  to  W.  L. 
Maupin  for  $1,600.  Nearly  three  years  thereafter,  to  wit,  in  April, 
1900,  appellee  brought  suit  in  equity  against  appellant  and  Mrs.  R. 
A.  Willis  to  recover  of  the  former  the  difference  between  the  amount 
paid  by  him  for  the  property  and  the  price  at  which  he  afterwards  sold 
it  to  Maupin. 

The  bill  also  prays  that,  if  necessary,  Mrs.  R.  A.  Willis  may  be  held 
responsible  for  her  failure  to  carry  out  her  agreement  to  purchase 
the  property  from  appellant  in  accordance  with  the  stipulations  of  the 
option  contract. 

Appellee  maintains  (1)  that  the  deed  referred  to,  while  absolute  on 
its  face,  is  in  fact  a  mortgage ;  and  (2)  that  appellant's  conduct  in 
connection  with  the  procurement  of  the  deed  was  fraudulent.  She 
therefore  insists  that  he  ought  to  be  regarded,  in  equity,  as  a  trustee, 
and  required  to  account  for  and  pay  over  to  her  any  profit  that  may 
have  accrued  to  him  from  the  transaction. 

Appellant  and  Mrs.  R.  A.  Willis,  in  their  answers  to  the  original  and 
amended  bills,  set  out  in  detail  their  version  of  the  matter,  and  insist 
that  their  conduct  had  been  in  all  respects  fair;  and  that  the  trans- 
action was  fully  understood  and  acquiesced  in  by  appellee.  They 
also  maintain  that  the  deed  in  question  is  what  it  purports  to  be — an 
absolute  conveyance,  and  not  a  mortgage. 

At  the  hearing  the  trial  court  adjudged  the  deed  to  be  a  mortgage, 
and  decreed  that  appellant  should  be  lield  responsible  to  appellee  for 
all  profit  made  by  him  on  the  sale  to  Maupin. 

The  doctrine  that  a  conveyance  of  land  absolute  on  its  face  may,  in 
equity,  be  shown  by  extrinsic  parol  evidence  to  be  a  mortgage,  is,  of 
course,  too  well  settled  to  require  either  discussion  or  the  citation  of 
authority  to  sustain  it.  But  it  is  equally  well  settled  that  the  presump- 
tion in  such  case  always  is  that  the  deed  is  what  on  its  face  it  purports 
to  be;   and,  in  order  to  repel  that  presumption,  the  evidence  must  be 


FORM    OF   MORTGAGES  431 

clear,  unequivocal,  and  convincing.  3  Pom.  Eq.  §  1196;  Phelps  v. 
Seely,  22  Grat.  573;  Snavely  v.  Pickle,  29  Grat.  27;  Edwards  v. 
Wall.  79  Va.  321. 

The  rule  is  thus  stated  by  Chief  Justice  Ruffin  in  Franklin  v.  Rob- 
erts, Z7  N.  C.  560:  "When  the  answer  denies  the  right  of  redemption, 
the  proofs  must  be  clear,  consistent,  and  cogent,  composed  of  circum- 
stances incompatible  with  the  idea  of  an  absolute  purchase,  and  leaving 
no  doubt  on  the  mind." 

The  doctrine  is  in  derogation  of  the  general  rule  that  parol  evidence 
is  inadmissible  to  contradict  or  substantially  vary  the  legal  import  of 
a  written  instrument.  Towner  v.  Lucas'  Ex'r,  13  Grat.  705.  It  is 
within  the  mischief  intended  to  be  prevented  by  that  rule,  and  hence 
the  necessity  for  the  qualification  that  the  proofs  must  be  so  convinc- 
ing as  to  leave  no  doubt  on  the  mind  that  a  mortgage,  and  not  an  ab- 
solute conveyance,  was  intended.  The  evidence  in  this  case  falls  far 
short  of  that  requirement.  Indeed,  it  shows  quite  the  reverse.  It  ap- 
pears that  the  only  contract  between  the  parties  is  embodied  in  the 
deed  of  January  22d,  and  the  option  contract  of  February  6,  1896, 
and  that  appellee  understood  that  the  effect  of  her  deed  was  to  divest 
her  of  all  interest  in  the  property,  but  that  the  right  to  purchase  it  at 
actual  cost  within  two  years  was  guarantied  to  Mrs.  R.  A.  Willis  by 
the  terms  of  the  option. 

So  that  the  decision  of  the  case  must  depend  upon  the  proper  con- 
struction of  those  instruments,  taken  together,  in  the  light  of  the  co- 
temporaneous  understanding  of  the  parties. 

The  distinction  between  a  mortgage  and  a  conditional  sale  is  clearly 
drawn  in  Turner  v.  Kerr,  44  Mo.  429,  as  follows :  "A  mortgage  and 
a  conditional  sale  are  said  to  be  nearly  allied  to  each  other,  the  dif- 
ference between  them  being  defined  to  consist  in  this :  that  the  former 
is  a  security  for  a  debt,  while  the  latter  is  a  purchase  accompanied 
by  an  agreement  to  resell  on  particular  terms.  *  *  *  Where  the 
parties  intend  a  conditional  sale,  and  not  a  mortgage,  and  make  their 
contracts  in  accordance  with  their  intentions,  it  is  not  the  province  of 
the  court  to  circumvent  and  frustrate  their  intentions.  It  is  neverthe- 
less true  that  neither  the  intention  of  the  parties  nor  their  express  con- 
tract can  change  the  essential  nature  of  things.  A  conveyance  to  se- 
cure a  debt  is  a  mortgage,  and  the  stipulations  of  the  parties  cannot 
make  it  otherwise.  But  a  conveyance  to  pay  a  debt  is  a  totally  dif- 
ferent affair.  If  the  conveyance  extinguishes  the  debt,  and  the  parties 
so  intend,  so  that  a  plea  of  payment  would  bar  an  action  thereon,  a 
subsequent  or  cotemporaneous  stipulation  in  the  interest  of  the  debtor, 
securing  to  him  an  opportunity  to  reacquire  the  title,  ought  not  to  be 
construed  to  the  creditor's  prejudice.  Such  a  transaction  is  no  mort- 
gage, but  a  conditional  sale." 

In  Sadler  v.  Taylor,  49  W.  Va.  104,  38  S.  E.  583,  the  rule  is  stated 
thus:   "If,  by  the  intention  of  the  parties,  the  transaction  was  origi- 


432  MORTGAGES 

nally  a  security  for  the  payment  of  money,  it  will  be  held  in  equity  to 
be  a  mortgage,  and  the  maxim,  'Once  a  mortgage,  always  a  mortgage,' 
applies,  and  it  will  remain  such,  unless  changed  by  a  new  contract. 
*  *  *  But  if,  originally,  the  transaction  was  a  sale  of  property  with 
a  right  of  repurchase  at  the  option  of  the  grantor,  it  is  a  conditional 
sale,  and  no  subsequent  event  short  of  a  new  agreement  between  the 
parties  can  convert  it  into  a  mortgage." 

"When  it  is  clear  that  after  the  execution  of  the  instrument  no 
debt  remains  due  from  the  grantor  to  the  grantee,  the  transaction  is 
a  contract  of  sale,  and  the  deed  must  be  given  its  legal  effect."  1  Jones 
on  Alortgages,  §  263. 

Applying  these  principles  to  the  facts  of  the  case  in  hand,  the  deed 
and  option  contract  constitute  a  conditional  sale,  and  not  a  mortgage. 
There  was  no  indebtedness  due  from  appellee  to  appellant  and  Mrs. 
R.  A.  Willis,  or  to  either  of  them,  and  hence  there  can  be  no  mortgage 
by  implication.  THe  existence  of  a  debt  is  the  test.  A  mortgage 
without  a  debt  to  support  it  is  a  legal  solecism.  3  Pom.  Eq.  §  1195; 
1  Jones  on  Mortgages,  §  265.  The  transaction  between  the  appellant 
and  the  association  extinguished  the  indebtedness  of  appellee ;  and,  by 
the  understanding  of  appellant  and  appellee,  the  payment  of  that  in- 
debtedness did  not  constitute  a  new  debt,  but  a  consideration  for  the 
deed  to  the  house  and  lot  from  the  latter  to  the  former.  The  char- 
acter of  the  transaction  is  fixed  in  its  inception,  and  is  what  the  inten- 
tion of  the  parties  makes  it.  If  it  was  a  mortgage  originally,  it  re- 
mains so ;  and  the  same  is  true  of  a  conditional  sale.  In  either  case 
it  is  unaffected  by  subsequent  events,  unless  they  amount  to  a  change 
of  contract.  The  form  of  the  transaction  and  the  circumstances  at- 
tending it  are  but  the  means  of  ascertaining  the  real  intention  of  the 
parties. 

If  at  the  sale  to  Maupin  the  property  had  brought  less,  instead  of 
more,  than  appellant  paid  for  it,  it  is  quite  clear  that  he  would  have 
had  no  remedy  over  against  appellee  for  the  deficit,  as  would  unques- 
tionably have  been  the  case  had  the  relation  of  creditor  and  debtor 
existed  between  them.  The  title  to  the  property  passed  by  the  deed 
to  appellant,  subject  to  be  divested  only  by  a  performance  of  the  con- 
dition contained  in  the  option  contract ;  and  that  supplies  all  the  es- 
sential elements  of  a  conditional  sale,  in  which  the  ground  of  de- 
feasance is  dependent  on  a  condition  subsequent. 

While  the  case  is  unquestionably  one  of  unusual  hardship,  and  ap- 
peals strongly  to  the  sympathies,  nevertheless,  in  its  legal  aspects, 
this  court  has  been  unable  to  reach  the  conclusion  either  that  the  deed 
in  question  is  a  mortgage  or  that  it  was  fraudulently  procured. 

An  attempt  on  the  part  of  the  courts  to  correct  the  hardship  of 
particular  cases  by  a  departure  from  settled  principles,  if  permissi- 
ble, would,  in  the  general  result,  inevitably  accomplish  far  more  harm 
than  good. 


FOKM   OF   MORTGAGES  433 

As  was  observed  by  Chief  Justice  Marshall  in  Conway  v.  Alexander, 
7  Cranch,  218,  3  L.  Ed.  321 :  "To  deny  the  power  of  two  individ- 
uals capable  of  acting  for  themselves  to  make  a  contract  for  the  pur- 
chase and  sale  of  lands  defeasible  by  the  payment  of  money  at  a 
future  day,  or,  in  other  words,  to  make  a  sale  with  a  reservation  to 
the  vendor  of  a  right  to  repurchase  the  same  land  at  a  fixed  price  and 
at  a  specified  time,  would  be  to  transfer  to  the  courts  of  chancery  in 
a  considerable  degree  the  guardianship  of  adults  as  well  as  infants. 
Such  contracts  are  certainly  not  prohibited  either  by  the  letter  or  the 
policy  of  the  law."   ^ 

It  follows  from  these  views  that  the  decree  complained  of  is  er- 
roneous, and  must  be  reversed.® 


4.  DiiED  OF  Trust 


FISKE  V.  MAYHEW. 

(Supreme  Court  of  Nebraska,  1911.    90  Neb.  196,  133  N.  W.  195, 
Ann.  Cas.  1913A,  1043.) 

Appeal  from  District  Court,  Hamilton  County;   Good,  Judge. 

Action  by  Rodman  W.  Fiske,  trustee,  against  Edward  F.  Mayhew 
and  others.  From  the  judgment,  defendants  Edward  F.  Mayhew  and 
another  appeal.     Affirmed, 

Lktton,  J.  Edward  F.  Mayhew,  a  dealer  in  agricultural  implements 
at  Friend,  Neb.,  being  indebted  to  a  number  of  creditors,  on  Febru- 
ary 23,  1907,  executed  a  conveyance  to  Rodman  W.  Fiske,  trustee. 
The  first  portion  of  this  conveyance  is  in  form  a  warranty  deed. 
Then  follows  a  provision  that  the  trustee  shall  have  immediate  posses- 
sion of  the  land  and  the  right  to  the  crops,  a  recital  that  "this  convey- 
ance is  made  for  the  use  and  benefit  of  all  parties  hereinafter  named ; 
and  said  Edward  F.  Mayhew  being  indebted  to  said  parties  in  the 
respective  sums  set  forth  as  follows,  to  wit :  Moon  Brothers  Carriage 
Co.  $702.00,"  etc.,  setting  forth  the  names  of  each  creditor  and  the 
amounts  due  each  severally.  It  is  next  provided  that  the  trustee  "shall 
place  the  said  premises  upon  the  market  for  sale,  use  due  diligence 
to  sell  the  same  to  the  best  possible  advantage  and  to  obtain  the  best 

6  For  further  cases,  distinguishing  a  mortgage  from  a  conditional  sale,  see 
Slutz  V.  Desenberg,  28  Ohio  St.  371  (1876)  ;  Beidelman  v.  Koch,  42  Ind.  App. 
423,  85  N.  E.  977  (1908)  ;  Harmon  v.  Banking,  etc.  Co.,  60  Or.  69,  118  Pac. 
188  (1911).  The  actual  intention  of  the  parties  governs,  gathered  from  the 
written  instrument  and  also  from  the  circumstances  of  the  particular  case. 
Phillips  V.  Jackson,  240  Mo.  310,  144  S.  W.  112  (1912);  Yost  v.  Hays  City 
First  Nat.  Bffnk,  66  Kan.  605,  72  Pac.  209  (1903)  ;  Hershey  v.  Luce,  56  Ark. 
320.  19  S.  W.  963,  20  S.  W.  6  (1892)  ;  Horbach  v.  Hill,  112  U.  S.  144,  5  Sup 
Ct.  81,  28  L.  Ed.  670  (1884). 

Bukd.Cas.Keal  Pbop. — 28 


434  MORTGAGES 

price  hf  can  therefor,  hereby  giving  to  him  full  power  to  sell  the  same 
at  public  or  private  sale  at  such  time  as  he  shall  deem  best,  and  from 
the  proceeds"  he  shall  pay  the  creditors  in  proportion  to  their  claims, 
and  the  residue,  if  any,  shall  be  paid  to  Mayhew.  Next  follows  the 
following  provision :  "This  instrument  shall  not  be  construed  as  a 
mere  mortgage,  it  being  the  design  and  purpose  of  the  said  grantors 
herein  to  clothe  the  said  Rodman  W.  Fiske  with  plenary  power  to 
make  an  absolute  sale  and  conveyance  of  said  premises  for  the  pur- 
poses herein  expressed,  and  to  that  end  the  said  grantors  hereby  con- 
stitute, create  and  make  the  said  Rodman  W.  Fiske  their  attorney 
in  fact,  without  the  power  of  revocation  to  make  sale  of  said  premises 
and  deed  of  conveyance  of  the  same  vesting  an  indefeasible  title  in 
the  purchaser  thereto." 

This  action  was  brought  to  foreclose  the  trust  deed.  The  plaintiff 
takes  the  position  that  the  instrument,  though  in  form  a  warranty 
deed  with  a  power  of  sale,  is,  in  fact,  a  mortgage,  and  that  foreclosure 
is  necessary  in  order  to  cut  off  the  equities  of  the  defendants,  and  con- 
vey a  valid  title  to  a  purchaser.  The  defendants  insist  that  the  in- 
strument is  a  warranty  deed  conveying  the  legal  title  to  Fiske,  and  con- 
stituting him  their  attorney  in  fact,  with  power  to  sell  the  land  at 
public  or  private  sale  at  such  time  as  he  should  deem  best,  and  to  make 
a  good  and  sufficient  deed  to  the  purchaser  conveying  in  fee  simple. 
They  further  contend  that  they  are  entitled  to  have  the  land  sold  by 
the  trustee  at  either  public  or  private  sale  without  foreclosure  and 
the  resulting  loss  and  expenses. 

The  evidence  discloses  that  the  deed  was  executed  at  a  meeting  be- 
tween Mayhew  and  the  representatives  of  some  of  his  creditors  at  the 
office  of  Mr.  Haney,  in  Lincoln ;  and,  while  not  expressed  in  the  deed 
of  trust,  it  was  agreed  that  Mayhew  might  pay  the  debts  at  any  time. 
After  the  conveyance  was  made,  the  property  was  advertised  in  the 
Lincoln  and  Omaha  papers  by  Fiske.  An  offer  was  received  of  $10,- 
700,  which  Fiske  submitted  to  Mayhew,  but  which  was  rejected  by 
him.  Mayhew  testifies  that,  when  the  deed  was  executed,  it  was  not 
represented  to  him  as  a  mortgage ;  that  he  still  claims  an  interest  in 
the  property,  and  has  ever  since  the  deed  was  signed;  that  he  has 
paid  none  of  the  interest  or  principal  on  these  debts ;  that  he  has  taken 
possession  of  the  land  and  collected  the  rents;  that  the  first  year  he 
paid  the  taxes  and  interest ;  and  that  he  claims  to  be  entitled  to  the 
surplus  proceeds  of  a  sale,  after  the  debts  are  paid,  and  that  he  had 
that  understanding  when  he  gave  the  deed. 

The  question  as  to  the  nature  of  a  mortgage  and  the  essential  quali- 
ty of  like  instruments  to  that  in  consideration  here  came  up  at  an  early 
date  in  the  legal  history  of  this  state.  In  Kyger  v.  Ryley,  2  Neb.  20, 
the  history  and  character  of  mortgages  at  common  law  and  in  equity 
was  considered,  and  it  is  said  that  "a  mortgage  in  this  state  is  a  mere 
pledge,  or  collateral  security,  for  the  payment  of  money,  or  the  doing 


FORM    OF   MORTGAGES  435 

of  some  other  thing,"  and  must  be  foreclosed  by  an  action.  In  Webb 
V.  Hoselton,  4  Neb.  308,  19  Am.  Rep.  638,  a  deed  which  conveyed 
certain  real  estate  to  a  trustee,  and  provided  that,  in  default  of  the 
payment  of  a  promissory  note,  the  trustee  was  empowered  to  sell  the 
estate  at  public  auction,  but  that  upon  full  payment  of  the  same  with 
interest  a  reconveyance  should  be  made,  was  held  to  be  in  effect  a  mort- 
gage. The  court  said :  "The  fact  that  the  mortgage  in  this  instance 
is  in  the  form  of  a  deed  of  trust  does  not  change  its  character  from 
a  mere  security  for  the  payment  of  money,  nor  does  it  convey  the  legal 
title,  nor  do  the  restrictions  therein  contained  prevent  the  plaintiff 
from  availing  herself  of  the  safeguards  thrown  around  the  debtor  to 
prevent  a  sacrifice  of  her  property." 

In  Hurley  v.  Estes,  6  Neb.  386,  it  is  said  in  the  syllabus :  "A  deed 
of  trust  is  a  mortgage,  and  only  differs  from  a  mortgage  with  a  power 
of  sale  in  its  being  executed  to  a  third  person,  instead  of  a  creditor. 
When  an  instrument  is  given  as  security  for  the  payment  of  money, 
or  the  performance  of  some  collateral  act,  it  is  a  mortgage  whatever 
may  be  its  form."  Judge  Maxwell  in  the  opinion  quotes  authorities 
establishing  the  rule.  Comstock  v.  Michael,  17  Neb.  288,  22  N.  W. 
549,  and  Staunchfield  v.  Jeutter,  4  Neb.  (Unof.)  847,  96  N.  W.  642, 
are  to  the  same  effect.  This  is  the  general  rule.  27  Cyc.  1004,  and 
cases  cited  in  note  7;  3  Devlin,  Deeds  (2d  Ed.)  §  1126. 

While  in  many  or  perhaps  the  majority  of  the  states  a  deed  of  trust 
with  a  power  of  sale  may  be  foreclosed  by  a  strict  foreclosure  under 
the  power  conferred  (27  Cyc.  1450),  we  consider  the  law  settled  to  the 
contrary  in  this  state.  There  is  a  difference  between  the  instruments 
involved  in  the  foregoing  cases  and  that  under  consideration  here,  in 
this :  that  in  each  of  the  former  the  debt  was  payable  at  a  future 
day,  and  there  was  a  condition  that,  in  default  thereof,  the  deed  should 
become  absolute,  while  in  the  present  case  the  power  confers  the  im- 
mediate right  to  sell  the  property.  In  this  respect,  however,  the  in- 
strument is  no  dift'erent  in  effect  from  an  ordinary  mortgage  or  deed 
of  trust  after  condition  broken.  In  such  case  the  fact  of  default  does 
not  in  any  wise  alter  the  legal  relation  of  the  parties,  and,  under  the 
settled  rules  in  this  court,  an  action  to  foreclose  the  mortgage  is  neces- 
sary in  order  to  bar  the  equity  of  the  mortgagor  or  grantor  and  other 
persons  claiming  under  him.  Wheeler  v.  Sexton  (C.  C.)  34  Fed.  154, 
which  is  a  Nebraska  case ;  Comstock  v.  Michael,  supra ;  Hurley  v. 
Estes,  supra.  This  is  the  view  taken  by  other  courts.  Ogden  v.  Grant, 
36  Ky.  (6  Dana)  473;  National  Bank  v.  Lovenberg,  63  Tex.  506; 
Cooper  v.  Brock,  41  Mich.  4§8,  2  N.  W.  660;  27  Cyc.  1004.  There  is 
a  full  discussion  of  the  general  subject  in  2  Jones,  Mortgages  (6th  Ed.) 
§  1764  et  seq. 

It  is  true  that  in  the  instrument  it  is  provided  that  "this  instrument 
shall  not  be  construed  as  a  mere  mortgage,"  and  that  the  grantors  by 
the  instrument  constitute  Fiske  their  attorney  in  fact  "to  make  sale 
of  said  premises  and  deed  of  conveyance  of  the  same  vesting  an  in- 


436  MORTGAGES 

defeasible  title  in  the  purchaser  thereto,"  but  this  language  cannot 
control  the  whole  instrument.  The  decisive  facts  in  the  case  are  that 
the  instrument  was  intended  to  convey  the  land  as  security  for  the 
payment  of  certain  debts,  and  not  to  divest  the  grantor  of  all  his  in- 
terest in  the  land.  He  still  retained  in  equity  the  title  to  the  land.  The 
instrument  was  intended  as  a  security,  under  the  rule  in  this  state 
is  a  mortgage,  and  must  be  foreclosed  as  one. 
The  judgment  of  the  district  court  is  affirmed. 


5.  Agreement  to  Give  a  Mortgage 


FOSTER  LUMBER  CO.  v.  HARLAN  COUNTY  BANK. 

(Supreme  Court  of  Kansas,  1905.     71  Kan.  158,  80  Pac.  49,  114  Am.  St.  Rep. 

470,  6  Ann.  Cas.  44.) 

Error  from  district  court,' Phillips  county;   A.  C.  T.  Geiger,  Judge. 

Action  by  the  Harlan  County  Bank  against  the  Foster  Lumber  Com- 
pany.   Judgment  for  plaintiff,  and  defendant  brings  error.    Affirmed. 

BuRCH,  J*  Arthur  A.  Underwood  held  a  contract  of  purchase  from 
the  Lincoln  Land  Company  of  certain  real  estate,  upon  which  there 
remained  a  balance  due.  He  w^as  also  under  obligations  to  various  per- 
sons on  account  of  the  erection  of  a  house  and  other  improvements 
upon  the  property.  For  the  purpose  of  paying  the  amount  due  on  the 
land  and  procuring  a  deed  of  it,  and  for  the  purpose  of  discharging 
his  obligations  for  improvements  on  the  land,  he  borrowed  $900  of 
the  Harlan  County  National  Bank,  When  the  loan  was  made,  he  left 
his  land  contract  with  the  bank,  and  authorized  it  to  procure  a  deed 
of  the  property  from  the  land  company.  At  the  same  time  he  agreed 
orally  with  the  bank  that  it  should  hold  the  contract,  and  then  the  deed, 
as  security  for  the  loan,  until  a  formal  written  mortgage  could  be 
prepared,  which  he  agreed  to  give.  The  bank  paid  the  land  company, 
obtained  the  deed,  and  paid  out  the  remaining  proceeds  of  the  loan 
for  the  stipulated  purposes.  Underwood  then  refused  to  execute  a 
mortgage  to  the  bank,  and  mortgaged  the  property  to  the  Foster  Lum- 
ber Company.  The  lumber  company,  however,  at  the  time  it  received 
its  mortgage,  had  full  knowledge  of  all  the  rights,  claims,  interests,  and 
equities  of  the  bank,  and  already  had  received  $300  of  the  loan  direct 
from  the  bank,  on  account  of  its  claim  for  improvements.  The  land 
was  the  homestead  of  Underwood  and  his  wife.  In  an  action  by  the 
bank  for  the  recovery  of  a  balance  due  upon  its  loan,  it  claimed  and 
was  awarded  a  lien  on  the  land  superior  to  that  of  the  lumber  company 
under  its  mortgage.  The  lumber  company  seeks  a  reversal  of  that 
judgment  by  this  proceeding  in  error. 

It  is  claimed  the  transaction  disclosed  amounted  to  nothing  more 
than  a  deposit  of  title  deeds  as  security  for  a  loan,  and  hence  that  no 


FORM   OF  MORTGAGES  437 

lien  resulted.  The  bank,  however,  pleaded  and  proved,  and  the  court 
found,  that  the  deposit  of  the  contract  of  sale  was  accompanied  by  an 
express  oral  agreement  to  give  a  mortgage.  Such  an  agreement  fur- 
nished a  sufficient  basis  upon  which,  after  performance  by  the  bank, 
to  found  a  lien,  and  is  sufficient  to  take  the  case  entirely  out  of  the 
category  of  equitable  mortgages  arising  from  a  deposit  of  title  deeds 
merely. 

It  is  further  claimed  that  the  bank,  in  its  petition,  relied  upon  the 
deposit  of  the  land  contract  and  the  taking  the  deed  from  the  land 
company  as  its  security,  and  not  upon  the  agreement  to  give  a  mort- 
gage. The  bank,  however,  simply  pleaded  the  entire  transaction  as  it 
actually  occurred.  The  fact  that  the  transaction  may  have  included 
an  attempt  to  create  a  lien  by  the  deposit  of  title  instruments  does  not 
alter  or  destroy  the  effect  of  the  promise  to  give  a  mortgage.  The 
bank's  theory,  in  part,  may  have  been  that  the  deposit  of  the  contract, 
and  the  procuring  of  the  deed  to  Underwood's  land  did  give  it  a  lien. 
It  had  the  right  to  present  the  question  to  the  courts.  But  it  did  not 
thereby  abandon  the  right  to  claim  a  lien  by  virtue  of  the  express  con- 
tract to  give  a  mortgage,  which  it  fully  and  plainly  pleaded.  The  two 
claims  are  not  inconsistent.  Both  have  been  urged.  That  of  an  equita- 
ble mortgage  is  sufficient  to  sustain  the  judgment  of  the  district  court, 
and  no  occasion  arises  to  discuss  the  policy  of  the  law  of  this  state 
concerning  the  other.  Having  obtained  the  bank's  money  upon  an 
agreement  to  give  it  a  mortgage.  Underwood  should  have  executed  and 
delivered  the  promised  security.  Equity  treats  that  as  done  which  a 
party,  under  his  agreement,  ought  to  have  done.  Elston  v.  Chamber- 
lain, 41  Kan.  354,  361,  21  Pac.  259.  And  the  court  had  no  alternative 
but  to  apply  the  maxim  in  this  case.  3  Pomeroy  Eq.  Jur.  (2d  Ed.) 
§  1237;  1  Jones  on  Mortgages  (6th  Ed.)  §  163;  11  A.  &  E.  Encycl.  of 
L.  (2d  Ed.)  125. 

The  fact  that  the  agreement  to  give  a  mortgage  was  oral  does  not 
affect  the  validity  of  the  bank's  lien.  It  had  fully  performed  its  part 
of  the  agreement.  "The  doctrine  of  equitable  mortgages  is  not  limited 
to  written  instruments  intended  as  mortgages,  but  which  by  reason  of 
formal  defects  cannot  have  such  operation  without  the  aid  of  the  court, 
but  also  to  a  very  great  variety  of  transactions  to  which  equity  attaches 
that  character.  It  is  not  necessary  that  such  transactions  or  agree- 
ments as  to  lands  should  be  in  writing,  in  order  to  take  them  out  of  the 
operation  of  the  statute  of  frauds,  for  two  reasons:  First,  because 
they  are  completely  executed  by  at  least  one  of  the  parties,  and  are 
no  longer  executory;  and,  secondly,  because  the  statute,  by  its  own 
terms,  does  not  affect  the  power  which  courts  of  equity  have  always 
exercised  to  compel  specific  performance  of  such  agreements." 
Sprague  v.  Cochran,  144  N.  Y.  104,  113,  38  N.  E.  1000,  1002.  "That 
statute  was  enacted  to  provide  as  far  as  possible  against  the  perpetra- 
tion of  frauds,  and  courts  of  equity  never  allow  its  provisions  to  be  per- 
verted and  made  instrumental  in  the  accomplishment  of  fraud.    They 


438  MORTGAGES 

decree  the  specific  execution  of  agreements  where  there  has  been  a 
performance  on  the  one  side,  because  the  refusal  to  perform  on  the 
other  side  is  a  fraud ;  and  they  will  not  permit  the  statute  designed  to 
prevent  fraud  to  be  made  an  engine  of  fraud.  Md.  Sav.  Inst.  v.  Schroe- 
der,  8  Gill  &  J.  93,  29  Am.  Dec.  528 ;  Hamilton  v.  Jones,  3  Gill  &  J. 
127;  Artz  and  wife  v.  Grove,  21  Md.  456;  Moale  v.  Buchanan,  11  Gill 
&  J.  314."  Cole  V.  Cole  and  wife,  41  Md.  301.  See,  also.  Dean  v.  An- 
derson, 34  N.  J.  Eq.  496;  Baker  v.  Baker,  2  S.  D.  261,  49  N.  W.  1064, 
39  Am.  St.  Rep.  776;  King  v.  Williams,  66  Ark.  333,  50  S.  W.  695; 
1  Jones  on  JMortgages  (6th  Ed.)  §  164. 

Besides  this,  it  properly  may  be  said  that  the  lien  actually  decreed 
results  from  the  operation  of  the  law  upon  the  entire  conduct  of  the 
parties,  and  hence  is,  in  terms,  excluded  from  the  inhibition  of  the 
statute. 

"It  is  claimed  by  counsel  for  plaintiff  in  error,  substantially,  that  an 
equitable  lien  on  real  estate,  where  it  has  any  real  existence,  is  an  in- 
terest in  land,  and  cannot  be  created  merely  by  parol ;  that  the  statute 
of  frauds  (Gen.  St.  1868,  p.  505,  §  5)  prohibits  such  a  thing.  All  of 
this  we  agree  to,  but  still  the  statute  of  frauds  does  not  attempt  to 
prohibit  the  creation  of  equitable  liens  by  operation  of  law,  nor  does 
any  other  statute.  Stevens  v.  Chadwick,  10  Kan.  406,  15  Am.  Rep. 
340.  Such  a  lien  should,  of  course,  be  in  accordance  with  the  contract 
and  understanding  of  the  parties  affected  by  it,  but  still  it  may  some- 
times result,  by  operation  of  law,  from  the  transactions  of  the  parties, 
almost  wholly  independent  of  the  contract  that  may  be  made  between 
them.  It  results,  however,  from  the.  whole  transaction,  including  all 
the  contracts,  agreements,  and  understandings  of  the  parties,  parol  or 
otherwise."  Curtis  v.  Buckley,  14  Kan.  449,  456.  In  the  case  of 
Sprague  v.  Cochran,  supra,  it  is  said :  "There  can  be  no  doubt,  upon 
the  authorities,  that  where  one  party  advances  money  to  another  upon 
the  faith  of  a  verbal  agreement  by  the  latter  to  secure  its  payment 
by  a  mortgage  upon  certain  lands,  but  which  is  never  executed,  or 
which,  if  executed,  is  so  defective  or  informal  as  to  fail  in  effectuat- 
ing the  purpose  of  its  execution,  equity  will  impress  upon  the  land 
intended  to  be  mortgaged  a  lien  in  favor  of  the  creditor  who  advanced 
the  money,  for  the  security  and  satisfaction  of  his  debt.  This  lien 
attaches  upon  the  payment  of  the  money,  and,  unless  there  is  a  waiver 
of  it,  express  or  implied,  remains  and  may  be  enforced  so  long  as 
the  debt  itself  may  be  enforced.  *  *  *  The  whole  doctrine  of  eq- 
uitable mortgages  is  founded  upon  the  cardinal  maxim  of  equity  which 
regards  that  as  done  which  has  been  agreed  to  be  done  and  ought  to 
have  been  done.  In  order  to  apply  this  maxim  according  to  its  true 
meaning,  the  court  will  treat  the  subject-matter,  as  to  collateral  con- 
sequences and  incidents,  in  the  same  manner  as  if  the  final  acts  con- 
templated by  the  parties  had  been  executed  exactly  as  they  ought  to 
have  been."  This  being  true,  the  situation  of  the  parties  at  the  time 
the  lumber  company  took  its  mortgage  was  precisely  the  same  as  if 


CONSIDERATION    OF   MORTGAGES  439 

the  contemplated  mortgage  to  the  bank  had  actually  been  given,  and 
notice  to  the  lumber  company  of  the  bank's  rights  was  equivalent  to 
notice  of  a  prior  unrecorded  mortgage.  Under  the  recording  acts,  such 
instruments  are  valid  between  the  parties  and  all  persons  having  actual 
notice  of  them.  N.  W.  Forwarding  Co.  v.  Mahaffey,  Slutz  &  Co.,  3t 
Kan.  152,  12  Pac.  705.  Hence  the  lien  of  the  lumber  company  war 
necessarily  inferior  to  that  of  the  bank.  Jones  v.  Lapham,  15  Kan. 
540;  11  A.  &  E.  Encycl.  of  L.  (2d  Ed.)  141. 

The  position  taken  by  the  lumber  company  in  the  court  below  and  in 
this  court  is  that  the  bank  was  not  entitled  to  any  lien  whatever,  in  any 
sum.  The  attacks  made  upon  the  findings  of  fact  and  conclusions  of 
law  were  directed  to  the  complete  annihilation  of  the  equitable  mort- 
gage sought  to  be  foreclosed.  No  efifort  has  been  made  to  exclude  any 
of  the^items  utilized  in  computing  the  amount  of  the  lien,  and  the  mort- 
gage has  been  left  to  stand  or  fall  as  an  entirety.  If,  therefore,  any 
part  of  it  be  valid  as  against  the  claimed  homestead  character  of  the 
premises,  the  judgment  cannot  be  disturbed.  There  can  be  no  douot 
but  that,  to  the  extent  of  the  unpaid  purchase  price  of  the  land,  the 
bank's  equitable  mortgage  was  a  purchase-money  mortgage,  and  there- 
fore valid  without  the  consent  of  Mrs.  Underwood,  and  notwithstand- 
ing the  property  was  occupied  as  a  homestead.  Const,  art.  15,  §  9; 
Pratt  V.  Topeka  Bank,  12  Kan.  570;  x\ndrews  v.  Alcorn,  13  Kan. 
351 ;  Ayres  v.  Probasco,  14  Kan.  177;  Nichols  v.  Overacker,  16  Kan.  54. 

All  other  assignments  of  error  have  been  examined  and  found  to  be 
unsubstantial.  The  judgment  of  the  district  court  is  affirmed.  All  the 
Justices  concurring.'' 


IV.  Consideration  of  Mortgages 


BAIRD  v.  BAIRD. 

(Court  of  Appeals  of  New  York,  1895.     145  N.  Y.  659,  40  N.  E.  222, 

28  D.  R.  A.  375.) 

Appeals  from  supreme  court,  general  term.  Fifth  department. 

Actions  by  Isabella  M,  Baird,  as  executrix,  against  William  Baird, 
impleaded,  etc.,  and  against  James  C.  Baird,  impleaded,  etc.,  to  fore- 
close mortgages.  From  the  judgments  of  the  special  term  (30  N.  Y. 
Supp.  785)  affirming  judgments  for  defendants,  plaintifif  appeals  in 
each  case.    Affirmed. 

7  In  accord :  Edwards  v.  Scruggs,  155  Ala.  568,  46  South.  850  (1908)  ;  Hall 
V.  Hall,  50  Conn.  104  (1882) ;  Hamilton  v.  Hamilton,  162  Ind.  430.  70  N.  E.  535 
(1904)  ;  Wickes  v.  Hynson,  95  Md.  511,  52  Atl.  747  (1902)  ;  Whitney  v.  Foster, 
117  Mich.  643,  76  N.  W.  114  (1898)  ;  Carter  v.  Holman,  60  Mo.  498  (1875)  ; 
Atlantic  Trust  Co.  v.  Holdsworth,  167  N.  Y.  532,  60  N.  B.  1106  (1901)  ;  KetcA- 
um  V.  St.  Louis,  101  U.  S.  306,  25  L.  Ed.  999  (1879). 

8  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  188. 


440  MORTGAGES 

O'Brien,  J.  Prior  to  the  year  1873,  John  Baird,  the  plaintiff's  hus- 
band and  testator,  was  the  owner  of  the  farm  which  is  covered  by 
the  two  mortgages  sought  to  be  foreclosed  in  these  actions.  In  that 
year  his  two  sons,  Wilham  and  James,  defendants,  went  into  posses- 
sion of  it,  and  the  father  directed  the  assessors  to  transfer  the  assess- 
ment on  the  farm  to  his  sons.  They  have  remained  in  possession  ever 
since.  In  October,  1874,  the  father  deeded  the  farm  to  the  sons,  who 
took  title  under  these  deeds  as  tenants  in  common.  It  appeared  that 
the  father  had  two  other  farms,  all  of  which  had  been  paid  for  and 
improved  with  the  aid  of  the  labor  and  services  of  his  sons,  who  had 
worked  for  him  after  their  majority.  On  a  settlement  between  the 
father  and  the  two  sons,  it  was  agreed  that  he  was  indebted  to  therii 
in  the  sum  of  $5,000,  and  that  was  the  consideration  for  the  convey- 
ance. A  deed  was  given  to  each  son  conveying  an  undivided  half  of 
the  farm  in  consideration  of  $2,500. 

The  evidence  tended  to  show,  and  the  trial  court  has  found,  that 
the  intention  was  to  vest  the  title  in  the  sons  in  fee;  but  it  appears 
that  the  father  had  some  fears  that  his  sons  would  not  be  able  to  take 
care  of  the  property  thus  conveyed,  and  that  it  might  be  lost  in  specula- 
tion or  otherwise.  In  order  to  prevent  such  a  result,  as  he  said,  he  re- 
quired the  sons  to  give  back  to  him  mortgages  for  $1,500  each  on  the 
farm.  No  bond  was  given,  and  no  actual  debt  was  intended  to  be 
secured,  and  they  were  not  recorded  by  the  father  in  his  lifetime. 
With  respect  to  the  purpose  and  consideration  of  these  mortgages,  the 
testimony  tended  to  show,  and  the  trial  court  found,  that  they  were 
not,  intended  to  secure  any  debt  or  to  be  or  become  a  valid  subsisting 
security,  or  to  be  recorded  or  enforced,  and  were,  in  fact,  without  any 
consideration  whatever.  In  the  year  1875  the  wife  of  John  Baird, 
and  mother  of  the  defendants,  died,  and  the  year  following  he  married 
the  plaintifif.  He  died  in  1883,  leaving  a  will,  in  which  the  plaintiff 
was  named  as  executrix.  In  that  capacity  she  brought  actions  against 
each  of  the  sons  to  foreclose  the  mortgages  given  by  them  respectively. 
The  complaint  was  dismissed  in  each  case,  and  the  judgments  were  af- 
firmed at  general  term.  There  are  two  appeals  and  two  records,  but 
both  judgments  rest  on  precisely  the  same  facts,  and  the  questions 
involved  in  both  appeals  are  identical.  Both  cases  may,  therefore,  be 
conveniently  considered  and  disposed  of  as  one. 

The  plaintiff's  right  to  enforce  the  mortgage  is  the  same  and  no 
other  than  the  mortgagee,  her  husband  and  testator,  had  in  his  life- 
time. She  stands  in  the  place  of  her  husband,  and  cannot  enforce  the 
instrument  unless  he  could,  and  every  defense  that  the  defendants 
could  urge  against  the  mortgage  during  the  life  of  the  father  they  may 
interpose  now  against  his  personal  representative.  The  instruments 
purport  to  have  been  given  to  secure  the  payment  of  money,  but  it 
was  shown  at  the  trial  affirmatively,  and  found  bv  the  trial  court,  that 
no  debt  in  fact  existed  in  favor  of  the  father  against  either  of  the  sons ; 


CONSIDERATION   OF  MORTGAGES  441 

that  there  was  no  intention  to  give  the  mortgage  on  the  one  hand,  or 
to  hold  it  on  the  other,  as  security  for  any  debt ;  that  in  fact  there  was 
no  legal  or  equitable  consideration  moving  between  the  parties,  and  no 
intention  on  either  side  to  treat  the  instruments  as  binding  obligations 
or  as  valid  or  subsisting  securities.  The  evidence  upon  which  these 
findings  were  made,  if  competent,  was  sufficient,  and  the  fact  is  not 
open  to  question  or  review  here. 

The  findings  are  based  upon  the  business  relations  which  the  parties 
occupied  to  each  other  before  the  father  gave  up  the  possession  of  the 
farm  to  the  sons,  and  then  conveyed  it  to  them,  taking  back  the  mort- 
gages in  question,  and  upon  his  subsequent  conduct  and.  declarations 
as  to  the  character  of  the  instruments  and  the  purpose  of  their  execu- 
tion and  delivery.  The  general  principle  that  an  instrument  under 
seal,  in  the  form  of  a  mortgage  upon  real  estate,  which  upon  its  face 
expresses  a  consideration  and  purports  to  have  been  given  as  security 
for  a  debt,  may,  nevertheless,  as  between  the  parties,  be  shown  to  have 
been  purely  voluntary  or  without  any  consideration,  and  so  invalid,  is 
not  denied.  Davis  v.  Beckstein,  69  N.  Y.  440,  25  Am.  Rep.  218;  Hill 
V.  Hoole,  116  N.  Y.  299,  22  N.  E.  547,  5  L.  R.  A.  620;  Briggs  v.  Lang- 
ford,  107  N.  Y.  680,  14  N.  E.  502;  Thomas,  Mortg.  §  847;  Jones, 
Mortg.  §  1297. 

The  point  upon  which  the  learned  counsel  for  the  plaintifif  relies  is 
that  evidence  was  not  admissible  at  the  trial  to  wholly  contradict  and 
defeat  the  instruments  by  showing,  contrary  to  what  appeared  on  their 
face,  that  they  were  intended  to  have  no  operation  whatever.  It  is 
sought  to  distinguish  this  case  from  that  of  a  deed,  absolute  upon  its 
face,  which  may  be  shown  to  be  in  fact  a  mortgage,  and  from  the 
•numerous  other  cases  in  which  equity  permits  a  party  to  show  that  an 
instrument,  appearing  upon  its  face  to  be  of  one  character,  is  or  ought 
to  be  in  truth  of  quite  another  character.  It  is  said  that  the  principle 
upon  which  these  cases  rest  gives  no  sanction  to  what  was  held  by 
the  court  below  in  this  case,  that  a  party  may  impeach  his  deed  by 
showing,  not  only  that  it  was  without  consideration,  but  that  it  was 
intended  to  have  no  validity  or  become  of  any  binding  force  whatever. 

The  desire  on  the  part  of  the  father  to  retain  some  sort  of  guardian- 
ship over  the  title  to  the  farm  which  he  had  conveyed  to  the  defend- 
ants was,  perhaps  natural  enough  under  the  circumstances,  and  it  is 
frequently  shown  in  such  transactions.  That  the  mortgages  were  not 
intended  to  be  held  by  him  for  any  other  purpose  is  supported  by  the 
circumstances  that  no  bond  was  given ;  that  they  were  not  recorded ; 
and  no  claim  was  made  by  the  mortgagee  during  his  life,  a  period  of 
about  nine  years,  that  they  were  in  his  hands  for  any  other  purpose, 
or  for  the  payment  of  either  principal  or  interest,  though  past  due. 
All  the  circumstances,  when  considered  with  the  proof  of  the  state- 
ments and  declarations  of  the  father,  were  sufficient  to  warrant  the 
findings  of  the  trial  court  with  respect  to  the  real  purpose  with  which 
th(^  instruments  were  made  and  their  true  consideration.     Holmes  v. 


442  MORTGAGES 

Roper,  141  N.  Y.  (>7 ,  36  N.  E.  180;  Lyon  v.  Riker,  141  N.  Y.  225, 
36  N.  E.  189.  The  presumption  of  some  consideration  that  arose  from 
the  presence  of  a  seal  was  overthrown,  and  we  must  assume  that  the 
instruments  were  without  consideration  of  any  kind.  Gray  v.  Barton, 
55  N.  Y.  68,  14  Am.  Rep.  181;  Best  v.  Thiel,  79  N.  Y.  15;  Torry  v. 
Black,  58  N.  Y.  185 ;  Home  Ins.  Co.  v.  Watson,  59  N.  Y.  395 ;  Dubois 
V.  Hermance,  56  N.  Y.  673. 

There  is  no  reason  that  we  can  perceive  for  giving  to  these  instru- 
ments any  greater  force  or  effect  than  was  contemplated  by  the  parties 
when  they  were  executed  and  delivered.  There  is  no  estoppel  or  any 
right  which  attached  in  favor  of  third  parties,  and  we  are  not  aware 
of  any  principle  which  would  now  require  a  court  of  equity  to  treat 
these  instruments  as  valid  subsisting  obligations,  unless  they  were 
intended  as  such  when  made,  and  this  is  negatived  by  the  findings. 
Nor  do  we  perceive  any  good  reason  why  the  real  purpose  and  true 
consideration  and  object  of  the  mortgages  should  not  be  made  to  ap- 
pear when  the  aid  of  a  court  of  equity  is  invoked  for  their  enforce- 
ment. The  authority  relied  upon  by  the  learned  counsel  for  the  plain- 
tiff in  support  of  his  contention  is  a  remark  of  Judge  Rapallo  in  the 
case  of  Hutchins  v.  Hutchins,  98  N.  Y.  56,  in  which  it  is  said:  "It 
has  never  been  held  that  a  deed  can  be  so  far  contradicted  by  parol 
as  to  show  that  it  was  not  intended  to  operate  at  all,  or  that  it  was  the 
intention  or  agreement  of  the  parties  that  the  grantee  should  acquire 
no  right  whatever  under  it,  or  that  he  should  reconvey  to  the  grantor 
on  his  request  without  any  consideration."  That  remark  must  be 
understood  with  reference  to  the  facts  of  the  case  then  under  consid- 
eration, which  was  the  case  of  a  deed  absolute  in  form,  but  intended 
as  a  mortgage.  The  defendant's  answer  was,  however,  so  drawn  as 
to  leave  room  for  the  construction  that  he  intended  to  urge  that  the 
conveyance  was  intended  to  be  wholly  inoperative,  or  in  trust,  or  to. 
secure  a  debt  which  the  parties  had  agreed  should  never  be  paid,  and 
it  was  with  reference  to  this  feature  of  the  case  that  the  expression 
was  used.  It  was  applicable  to  the  case  then  under  review,  but  cannot 
be  regarded  as  authority  for  the  proposition  that  the  defendants  in 
this  case  are  precluded  from  showing  that  the  mortgages  were  without 
any  consideration  in  fact,  or  that  they  were  not  intended  by  any  of 
the  parties  to  have  the  eft'ect  of  incumbering  or  defeating  the  title 
which  the  father  had  just  conveyed  to  his  sons. 

The  rule  which  excludes  evidence  of  parol  negotiations  or  conditions, 
when  offered  to  contradict  or  substantially  vary  the  legal  import  of  a 
written  agreement,  does  not  prevent  a  party  to  the  agreement,  in  an 
action  between  the  parties,  from  showing,  by  way  of  defense,  the  ex- 
istence of  a  contemporaneous  oral  agreement,  made  at  the  time  the 
writing  was  executed  and  delivered,  which  would  render  the  use  of 
the  written  instrument,  for  any  purpose  contrary  to  or  inconsistent 
witii  the  oral  stipulation,  dishonest  or  fraudulent.  Juilliard  v.  Chaffee, 
92  N.  Y.  529.     'J'he  consideration  of  a  written  instrument  is  always 


CONSIDERATION    OF    MORTGAGES  443 

open  to  inquiry,  and  a  party  may  show  that  the  design  and  object  of 
the  agreement  was  different  from  what  the  language,  if  alone  consid^ 
ered,  would  indicate.  Id.  Parol  evidence  may  also  be  given  to  show 
that  a  writing,  purporting  to  be  a  contract  or  obligation,  was  not  in 
fact  intended  or  delivered  as  such  by  the  parties.  Grierson  v.  Mason, 
60  N.  Y.  394.  So,  a  conveyance  absolute  in  form  may  be  shown,  as 
against  the  heir  at  law  of  the  grantee,  to  have  been  made  in  trust  for 
the  benefit  of  a  partnership  firm,  of  which  the  grantee  was  a  member, 
and  so  held  by  him  in  trust  for  the  firm.  Rank  v.  Grote,  110  N.  Y. 
12,  17  N.  E.  665.  Of  course  there  may  be  cases  where  the  rights  of 
innocent  third  parties  intervene  to  modify  or  change  the  rules,  as  in 
the  case  of  negotiable  instruments,  or  where  there  exists  some  element 
of  estoppel;  but  as  between  the  parties  to  the  instrument  there  is  no 
reason  why  the  truth,  with  respect  to  the  real  object  and  consideration 
of  the  instrument,  may  not  be  made  to  appear. 

The  plaintiff  was  not  entitled  to  maintain  the  actions  for  the  fore- 
closure of  the  mortgages  unless  it  was  found  that  there  was  some  debt 
due  to  her  for  the  payment  of  which  they  were  the  security.  The  find- 
ings are  that  no  debt  ever  existed,  and  this  is  conclusive  against  the 
plaintiff's  right  of  action.  In  an  action  to  enforce  a  mortgage  by  sale 
of  the  land,  the  amount,  if  anything,  of  the  lien  is  an  issue  which  the 
parties  certainly  have  the  right  to  contest.  It  is  the  debt  which  gives 
the  mortgage  vitality  as  a  charge  upon  the  land,  and  generally,  where 
there  is  no  debt  or  obligation,  there  is  no  subsisting  mortgage.  The 
instruments  contain  a  consideration  clause  and  a  seal,  and  much  of 
what  has  been  said  by  courts  and  writers  to  the  effect  that  a  party 
cannot  be  permitted  to  defeat  his  own  deed  by  parol  proof  is  based 
upon  the  importance  which  was  attached  to  the  presence  of  these  con- 
ditions in  an  instrument  by  the  common  law.  The  conception  that 
some  consideration  was  necessary  to  support  every  promise  and  cove- 
nant was  borrowed  from  the  civil  law,  but  the  consideration  was 
formerly  deemed  to  be  conclusively  established  by  the  presence  of  the 
consideration  clause  and  the  seal.  It  was  originally  supposed  that  the 
recitals  and  clauses  of  a  contract  expressing  a  consideration  could  not 
be  raised  by  parol  proof  to  the  contrary,  but  that  rule  was  gradually 
abandoned,  and  now  that  clause  is  open  to  parol  proof.  JMcCrea  v. 
Purmort,  16  Wend.  460,  30  Am.  Dec.  103 ;  Hebbard  v.  Plaughian,  70 
N.  Y.  54;  Ham  v.  Van  Orden,  84  N.  Y.  269.  So,  also,  the  conclusive 
presumption  of  a  consideration  which  formerly  arose  from  the  pres- 
ence of  a  seal  was  modified  by  statute,  and  it  is  now  open  to  the  maker 
of  such  an  instrument  to  allege  and  prove  the  absence  of  any  consid- 
eration in  fact  as  a  defense.  3  Rev.  St.  (5th  Ed.)  p.  691,  §§  77,  78; 
Code,  §  840. 

There  are,  it  is  true,  expressions  to  be  found  in  some  cases  to  the 
cft'ect  that  while  the  question  of  consideration  is  open  to  be  raised 
by  parol  proof,  yet  the  party  cannot  be  permitted  to  claim  that  a  deed 
or  other  instrument  with  a  consideration  clause  or  a  seal,  or  both,  is 


444  MORTGAGES 

wholly  without  consideration,  and  thus  entirely  defeat  it.  If  this  idea 
is  anything  more  than  a  somewhat  shadowy  and  fanciful  remnant  of 
the  ancient  law,  it  is  not  easy  to  define  its  precise  scope  or  practical 
application  when  applied  to  an  executory  instrument  like  a  mortgage. 
To  say  that  in  a  case  like  this  it  is  open  to  the  defendant  to  reduce 
by  parol  proof  the  sum  expressed  as  the  consideration  to  one  dollar 
or  any  other  nominal  sum,  but  that  he  cannot  go  any  further,  would 
be  to  confess  that  the  distinction,  if  it  exists,  is  altogether  without  sub- 
stance. The  instrument  would  be  defeated  in  either  case.  It  is  quite 
certain  that  by  recent  adjudications  deeds  and  other  instruments  have 
been  defeated,  in  a  great  variety  of  cases,  by  parol  proof  of  want 
of  consideration,  or  that  they  were  delivere'd  upon  conditions  which 
would  render  their  use  for  any  other  object  a  fraud  upon  the  maker, 
or  that  the  purpose  for  which  delivery  was  made  was  different  from 
that  indicated  upon  their  face.  It  will  be  sufficient  to  refer  to  some 
of  the  cases  without  further  comment.  Reynolds  v.  Robinson,  110 
N.  Y.  654,  18  N.  E.  127;  Blewitt  v.  Boorum,  142  N.  Y.  357,  37  N. 
E.  119,  40  Am.  St.  Rep.  600;  Andrews  v.  Brewster,  124  N.  Y.  433, 
26  N.  E.  1024.  So,  also,  actions  to  foreclose  mortgages  have  been 
defeated  upon  allegations  and  proof  differing  in  no  substantial  respect 
from  that  appearing  in  this  case.  Briggs  v.  Langford,  107  N.  Y.  680, 
14  N.  E.  502;  Hannan  v.  Hannan,  123  Mass.  441,  25  Am.  Rep.  121; 
Wearse  v.  Peirce,  24  Pick.  (Mass.)  141 ;  Hill  v.  Hoole,  116  N.  Y.  299, 
22  N.  E.  547,  5  L.  R.  A.  620;  Davis  v.  Bechstein,  69  N.  Y.  440,  25 
Am.  Rep.  218;  Parkhurst  v.  Higgins,  38  Hun,  113. 

There  may  be  cases,  no  doubt,  where  the  party  will  be  held  estopped 
by  his  deed  from  claiming  that  it  is  void  for  want  of  consideration, 
especially  where  by  its  terms  it  appears  to  be 'an  absolute  conveyance 
of  land.  In  re  Mitchell,  61  Hun,  372,  16  N.  Y.  Supp.  180.  A  volun- 
tary conveyance,  intended  to  take  effect  as  such,  and  not  executory, 
is  generally  good  between  the  parties  without  actual  consideration,  but 
that  principle  has  no  application  to  this  case.  It  is  not  quite  correct 
to  say  that  the  defendant  was  permitted  to  show  by  parol  that  these 
instruments  were  never  to  have  any  operation  or  effect.  They  were 
in  fact  executed  and  delivered  for  a  purpose,  though  not  to  secure  the 
payment  of  money,  and  they  may  have  accomplished  the  very  object 
contemplated.  That  was  to  protect  the  defendants  against  their  own 
improvidence  in  contracting  debts  upon  the  faith  of  their  title  to  the 
farm.  Whether  that  purpose  was  lawful  or  practicable  or  possible, 
or  the  contrary,  is  quite  foreign  to  the  inquiry.  It  is  enough  to  know 
that  such  was  the  motive  and  consideration  in  the  minds  of  all  the 
parties  which  induced  the  execution  and  delivery  and  no  other. 

Having  procured  them  in  that  way,  it  would  be  unconscionable  now 
for  the  mortgagee  or  his  personal  representative  to  use  or  enforce  them 
as  obligations  for  the  payment  of  money.  The  defendants  had  been 
in  possession  of  the  farm  under  the  final  contract  between  them  and 
their  father  to  convey  it  to  them,  in  consideration  of  the  amount  found 


SALE  OF  THE  MORTGAGED  PROPERTY  445 

due  upon  the  settlement,  for  more  than  a  year  before  the  deeds  or  mort- 
gages were  given.  Durmg  that  time  they  were  in  a  position  to  enforce 
specific  performance,  and  hence  the  execution  and  delivery  of  the 
mortgage  were  purely  voluntary  acts  on  their  part,  and  constituted,  so 
far  as  appears,  no  element  of  the  consideration  for  the  deeds.  The 
acts  and  declarations  of  the  mortgagee  with  respect  to  the  considera- 
tion, conditions,  and  purpose  under  which  the  instruments  were  made 
and  delivered,  being  admissions  against  his  interests,  would  have  been 
competent  proof  against  him  in  a  suit  to  enforce  the  mortgages  in  his 
lifetime,  and  hence  are  now  competent  against  the  plaintiff,  who  rep- 
resents him.  Holmes  v.  Roper,  141  N.  Y.  67,  36  N.  E.  180 ;  Lyon  v. 
Riker,  141  N.  Y.  225,  36  N.  E.  189;  Hobart  v.  Hobart,  62  N.  Y.  80. 
We  think  there  was  no  error  in  the  result,  and  that  the  judgments 
should  be  affirmed,  with  costs. 

Bartlett,  J.,  concurs.  Peckham  and  Gray,  JJ.,  concur  in  the  re- 
sult.    Andrews.  C.  J-,  dissents.     Haight,  J.,  not  sitting. 

Judgments  affirmed. 


V.  Sale  of  the  Mortgaged  Property ' 
1.  Purchase  oe  Equity  of  Redemption  by  Mortgaged 


DE  MARTIN  v.  PHELAN. 

(Supreme  Court  of  California,  1897.     115  Cal.  538,  47  Pac.  356, 

56  Am.  St.  Rep.  115.) 

Department  2.  Appeal  from  superior  court,  city  and  county  of  San 
Francisco ;   James  V.  Coffey,  Judge. 

Action  by  Francesca  L.  De  Martin  against  Alice  Phelan  and  others, 
executors  of  the  will  of  James  Phelan,  deceased.  Judgment  for  de- 
fendants on  demurrer  to  the  complaint,  and  plaintiff  appeals.  Af- 
firmed. 

TempeE,  J.  This  appeal  is  from  a  judgment  upon  demurrer  to 
the  complaint.  The  complaint  contains  averments  to  the  effect  that, 
on  the  4th  day  of  November,  A.  D,  1881,  plaintiff  owned  a  certain 
tract  of  land,  which  was  then  subject  to  mortgage  liens  then  owned 
by  James  Phelan.  The  amount  due  on  said  mortgages  was  $196,000. 
The  real  estate  was  worth  $390,375.  The  plaintiff  and  her  13  chil- 
dren were  in  indigent  circumstances,  destitute  of  available  means  of 
support,  in  great  need,  and  unable  to  secure  an  additional  loan  upon 
said  land,  or  to  sell  the  same,  owing  to  financial  stringency  then  pre- 
vailing, and  were  wholly  dependent  upon  the  charity  of  others.  Said 
Phelan  knew  of  her  distressed  condition,  and  also  that  her  equity  of 
redemption  was  worth  at  least  $45,500.     Still,  designing  to  take  ad- 

»  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  196. 


446  *  MORTGAGES 

vantage  of  her  distress  and  necessities,  he  first  offered  her  $4,000, 
and  then  $10,000,  and  finally  $19,000,  for  her  equity  of  redemption. 
The  offers  were  successively  made  on  different  days,  and  in  the  mean- 
time said  Phelan  had  her  property  advertised  for  sale,  under  execu- 
tion, on  a  decree  of  foreclosure  of  said  mortgages,  and  had  the  sale 
postponed  repeatedly,  for  the  purpose  of  securing  her  equity  of  re- 
demption for  a  sum  greatly  disproportionate  to  its  value,  by  taking 
an  oppressive  and  unfair  advantage  of  her  necessities  and  distress. 
That  on  the  4th  day  of  November,  1881,  decedent  made  her  the  offer 
of  $19,000,  and  threatened  to  proceed  with  the  sale  unless  she  ac- 
cepted it.  Compelled  by  her  distress  and  necessities,  she  finally  did 
accept  said  offer,  and  conveyed  her  equity  to  him  for  said  sum.  That 
she  did  not  know  that  decedent  had  taken  such  advantage,  or  that 
he  knew  of  her  necessities  and  distress  at  that  time,  but  that  she 
discovered  such  fact  on  the  27th  day  of  December,  1887.  It  is  averred 
that,  when  defendant  falsely  represented  that  he  would  sell  said  prop- 
erty unless  she  accepted  $19,000  for  her  equity,  decedent  did  not 
intend  to  sell  said  property,  but  had  in  fact  determined  not  to  sell 
the  same,  unless  he  was  unable  to  procure  plaintiff's  interest  for  $45,- 
500;  that  he  fully  intended  to  offer  her  $45,500  for  her  equity,  if  he 
could  not  procure  it  for  less;  that  this  intention  was  concealed  from 
plaintiff,  and  decedent  knowingly  and  designedly  took  advantage  of 
her  said  necessities  and  distress. 

A  great  many  objections  are  made  to  this  complaint,  but  I  do  not 
deem  it  essential  to  consider  any  of  them,  except  the  general  objec- 
tion that  it  states  no  cause  of  action.  That  the  complaint  does  not  state 
a  cause  of  action  is  quite  obvious.  The  facts  constituting  the  sup- 
posed fraud  are :  (1)  Plaintiff  was  without  available  means,  and  in 
great  financial  distress.  (2)  Decedent  had  obtained  a  judgment  fore- 
closing mortgage  liens  upon  her  land  amounting  to  $196,000.  Her 
land  was  worth  much  more  than  this,  but,  owing  to  a  temporary  strin- 
gency in  the  money  market,  she  could  not  borrow  more  money  upon 
the  land,  or  sell  it  for  more  than  the  mortgage  debt.  (3)  Decedent 
knew  that  her  equity  of  redemption  was  worth  $45,500,  and  was  will- 
ing to  pay  her  that  for  it  if  he  could  not  get  it  for  less,  but  concealed 
from  her  his  estimate  of  its  value,  and  his  willingness  to  pay  that  sum 
provided  she  would  not  take  less.  (4)  He  caused  the  property  to 
be  advertised  for  sale  under  the  decree,  and  then  caused  the  sale  to 
be  repeatedly  postponed,  in  the  meantime  making  her  successive  of-" 
fers  for  her  equity  of  $4,000,  $6,000,  $10,000,  and  $19,000,  which 
last  offer  she  accepted  in  ignorance  that  deceased  would  have  given 
her  more  had  she  insisted  upon  it  and  induced  by  her  necessities  and 
fears  of  losing  her  property  in  case  of  a  sale  under  the  decree. 

It  is  impossible  to  believe  counsel  serious  in  their  contention  that  it 
constituted  fraud  or  oppression  on  the  part  of  Phelan  to  conceal  from 
her  the  fact  that  he  intended  to  offer  her  as  much  as  $45,500  for  her 


SALE  OF  THE  MORTGAGED  PROPERTY  447 

equity,  if  he  could  not  succeed  in  getting  it  for  less.  It  would  con- 
stitute a  new  departure,  both  in  business  and  legal  ethics.  If  the  ob- 
ligation to  make  such  disclosures  rested  upon  Phelan,  of  course  the 
like  obligation  rested  upon  the  plaintiff  to  state  to  Phelan  the  very- 
least  sum  her  necessities  could  induce  her  to  accept  rather  than  per- 
mit a  sale.  Negotiations  under  such  conditions  would  surely  be  novel. 
The  real  point  in  the  case  is,  I  presume,  that  the  relations  between 
mortgagor  and  mortgagee  are  in  a  sense  fiduciary,  and  the  mortgagee 
must  obtain  no  advantage  over  the  mortgagor  by  the  use  of  the  least 
unfairness  or  oppression ;  and  it  is  maintained  that  it  was  oppression 
on  the  part  of  Phelan  to  get  the  property  for  an  inadequate  price, 
taking  advantage  of  her  necessities. 

1.  In  the  first  place,  the  relation  between  the  parties  was  in  no 
sense  fiduciary.  At  common  law  the  mortgagee,  at  least  after  condi- 
tion broken,  was  the  legal  owner,  and  could  oust  the  mortgagor.  He 
was  really  a  trustee.  Under  our  system  he  occupies  no  such  posi- 
tion, and  ordinarily  has  no  control  over  the  mortgaged  estate.     In 

*  those  cases  in  which  he  is,  by  the  mortgage,  given  some  power  or 
control  over  the  estate  before  foreclosure,  the  old  rule  may  prevail. 
There  is  nothing  to  show  the  nature  of  the  mortgages  formerly  held 
by  Phelan,  nor  does  it  now  matter.  When  the  wrongs  detailed  in 
the  complaint  were  enacted,  the  mortgages  had  been  foreclosed,  and 
Phelan  had  only  his  decree.  It  does  not  appear  that  a  receiver  had 
been  appointed,  or  that  proceedings  to  that  end  were  threatened. 

2.  The  sale,  even  after  the  decree  was  obtained,  was  not  hastened. 
The  negotiations  between  the  parties  were  protracted  and  deliberate. 
Plaintiff  was  fully  aware  of  the  situation,  and  knew  all  the  essential 
facts  of  the  case.  The  sale  was  adjourned  many  times,  and  succes- 
sive oft'ers  were  made  to  her  for  her  equity.  She  says  she  was  threat- 
ened with  a  sale  under  the  decree  if  she  did  not  sell.  Of  course,  she 
knew,  without  being  told,  that  such  sale  was  inevitable  if  she  did  not 
pay  the  debt  or  sell  her  equity.  The  financial  stringency  was  not 
brought  on  by  Phelan.  It  is  not  charged  that  he  interfered  to  pre- 
vent her  selling  to  another,  or  to  prevent  the  obtaining  of  a  loan.  I 
can  discover  no  element  of  fraud,  oppression,  or  unfairness  in  the 
case.     The  judgment  is  affirmed.^" 

We  concur:     Henshaw,  J.;    McFarland,  J. 

10  It  is  a  well-established  rule  that  the  mortgagor  may  sell  the  equity  of  re- 
demption to  the  mortgagee,  if  tlie  transaction  is  marked  with  good  faith  and 
supported  by  a  valuable  consideration.  Thornton  v.  Pinckard,  157  Ala.  206, 
47  South.  289  (1908)  ;  Wilson  v.  Vanstone,  112  Mo.  315,  20  S.  W.  612  (1892)  ; 
Barnes  v.  Brown,  71  N.  C.  507  (1S74)  ;  Raski  v.  Wise,  56  Or.  72,  107  Pac.  984 
11910);  Young  v.  Miner,  141  Wis.  501.  124  N.  W.  660  (1910).  In  North 
Carolina  it  has  been  held  (McLeod  v.  Bullard,  86  N.  C.  210  [1882];  Id.,  84 
N.  C.  515  [1881])  that,  where  the  mortgagee  buys  the  equity  of  redemption 
from  his  mortgagor,  the  law  presumes  fraud,  and  that  the  burden  of  proof 
is  on  the  mortgagee  to  show  the  fairness  and  good  faith  of  the  transaction. 
This  view,  however,  is  not  in  accord  with  decisions  elsewhere;    it  being  gen- 


44S  MORTGAGES 


,VI.  Assignment  of  Mortgages  ** 


MULCAHY  V.  FENWICK. 
(Supreme  Judicial  Court  of  Massacliusetts,  1894.     161  Mass.  164,  36  N.  E.  6S9.) 

Report  from  supreme  judicial  court,  Suffolk  county;  J.  B.  Richard- 
son, Judge. 

Bill  by  Bridget  Mulcahy  and  another  against  Joseph  B.  Fenwick  and 
others  to  compel  defendants  to  discharge  a  mortgage  and  to  surrender 
a  note.  The  case  was  reported  to  the  supreme  court.  Decree  for  de- 
fendants. 

At  the  hearing  in  the  superior  court,  Richardson,  J.,  found  the  fol- 
lowing facts: 

"In  or  about  the  year  1885  the  plaintiff  Mrs.  Mulcahy  became  the 
owner,  in  her  own  right,  of  a  parcel  of  land,  with  the  buildings  there- 
on, situated  in  the  city  of  Chelsea.  Her  husband,  Daniel  Mulcahy, 
transacted  all  the  business  relating  to  the  said  estate  for  her;  she 
signing  all  deeds  and  documents,  whenever  it  was  necessary  (not  be- 
ing able  to  read  or  write),  by  making  her  mark.  About  December  1, 
1888,  when  the  plaintiffs  were  erecting  a  house  on  said  land,  one  Eben 
Hutchinson,  an  attorney  at  law,  and  judge  of  the  police  court  of 
Chelsea,  went  upon  said  premises,  and  asked  Mr.  Mulcahy  if  he  de- 
sired to  borrow  some  money.  Mr.  Mulcahy  replied  that  he  might  want 
some  money  in  a  few  days.  Shortly  after,  Mulcahy  called  at  Hutchin- 
son's office,  in  Chelsea;  and  the  result  of  the  interview  between  INIul- 
cahy  and  Hutchinson  was  that  Hutchinson  agreed  to  loan  the  plain- 
tiffs $1,100  in  money,  and  also  to  assume  and  pay  a  mortgage  of 
$1,700  held  by  Messrs.  Slade  &  Griffin  upon  said  estate  of  the  plain- 
tiffs, and  Mulcahy  agreed  that  the  plaintiffs  would  give  Hutchinson 
a  note  for  the  $2,800  secured  by  a  mortgage  on  said  estate.  In  pur- 
suance of  this  agreement,  on  or  near  the  7th  day  of  December,  1888, 
the  said  Hutchinson  loaned  the  plaintiffs,  in  cash,  the  sum  of  $1,100, 
paying  the  same  in  several  sums  at  different  times,  the  first  sum  be- 
ing paid  on  December  '7,  1888,  and  later  the  said  Hutchinson  paid 
and  discharged  the  said  Slade  &  Griffin  mortgage,  of  $1,700;  and  on 
the  7th  day  of  December,  1888,  the  plaintiffs  signed  a  note  for  $2,800, 
and  executed  a  mortgage  upon  the  aforesaid  land  in  Chelsea  for  a 
like  sum,  as  security  for  said  note,  and  gave  the  note  and  mortgage 
to  said  Hutchinson.     Said  note  and  mortgage  were  made  to  run  from 

erally  lield  that  there  is  no  presumption  of  fraud,  and  that  the  parties  do  not 
stand  in  fiduciary  relations,  but  are  on  the  ordinary  footing  of  vendor  and 
purchaser.  See  Walker  v.  Farmers'  Bank,  8  Houst.  (Del.)  258,  10  Atl.  94,  14 
Atl.  819  (1888)  ;  Knight  v.  Marjoribanks,  2  Hall  &  T.  308,  47  Eng.  Reprint, 
1700. 

11  P^or  discussion  of  principles,  sec  Burdick,  Real  Prop.  §  197. 


ASSIGNMENT   OF  MORTGAGES  449 

the  plaintiffs  to  one  Henry  Hunt  Letteney.  Said  Henry  Hunt  Let- 
teney  executed  an  assignment  of  said  mortgage  and  note  on  December 
8,  1888,  to  Joseph  B.  Fenwick,  one  of  the  defendants. 

"The  terms  and  conditions  upon  which  the  money  was  loaned  were 
fixed  by  said  Hutchinson  and  Mulcahy,  and  without  the  knowledge  of 
said  Fenwick,  excepting  that  said  Fenwick  had  asked  said  Hutchin- 
son to  get  a  mortgage  of  $2,800  for  him,  and  had  been  told  by  said 
Hutchinson  that  he  had  a  mortgage,  or  would  get  one  for  him.  The 
note  and  mortgage  deed  were  drawn  by  said  Hutchinson,  or  one  of 
his  clerks  at  his  office,  and  were  executed  by  the  plaintiffs  at  his  of- 
fice, and  left  there  with  Hutchinson ;  and  the  mortgage  was  taken 
to  the  Suffolk  registry  of  deeds  by  said  Hutchinson  and  recorded  on 
December  8,  1888,  and  the  assignment  was  taken  to  said  registry  by 
said  Hutchinson  and  recorded  on  December  13,  1888.  Said  mortgage 
and  assignment  were  taken  from  the  registry  by  said  Hutchinson  about 
ten  days  after  each  had  been  left  there  to  be  recorded,  and  the  mort- 
gage and  assignment,  together  with  the  note  and  an  insurance  policy, 
were  delivered  by  said  Hutchinson  to  Fenwick  at  Fenwick's  house, 
in  Chelsea.  The  sum  of  $2,800  was  given  by  said  Fenwick  to  said 
Hutchinson  at  about  that  time.  Eleven  hundred  dollars,  which  was 
the  money  part  of  the  consideration,  was  paid  to  said  Mulcahy  by 
said  Hutchinson,  in  three  different  sums,  at  different  times ;  the  first 
sum  being  paid  on  December  7,  1888,  at  Hutchinson's  office.  Since 
the  delivery  of  said  mortgage,  note,  assignment,  and  policy  to  said 
Fenwick  by  said  Hutchinson,  as  aforesaid,  the  same  have  ever  since 
remained  in  the  possession  of  the  said  Fenwick,  either  at  his  house 
or  in  his  safe-deposit  vault;  and  neither  of  said  papers,  since  they 
were  delivered  by  said  Hutchinson  to  said  Fenwick,  have  ever  been 
in  the  possession  of  said  Hutchinson,  but  have  remained  exclusively 
in  the  possession  of  said  Fenwick.  Hutchinson  was  the  only  party  the 
plaintiffs  believed  to  have  any  interest  in  the  note.  The  plaintiff's 
never  had  any  talk  with  said  Letteney  until  after  the  said  Hutchin- 
son had  absconded,  and  the  plaintiffs  never  had  any  conversation  with 
said  Fenwick  until  about  July,  1892,  when  said  Fenwick,  for  the  first 
time,  stated  to  them  that  he  held  a  mortgage  upon  their  said  premises. 

"Said  Mulcahy  paid  to  Hutchinson  the  interest  on  said  note  of 
$2,800  from  time  to  time,  and  also  the  principal  sum  in  installments, 
and  received  therefor  receipts,  copies  of  which  are  hereto  attached, 
marked  'A,'  'B,'  'C,'  'D,'  'E,'  'F,'  and  'G,'  the  signatures  to  the  said 
receipts  being  in  the  handwriting  of  said  Eben  Hutchinson;  there 
being  included  in  one  or  two  of  said  receipts  interest  on  a  further 
loan  of  $100,  made  in  January,  1889,  by  said  Hutchinson  to  the  plain- 
tiffs, which  loan  the  plaintiffs  afterwards  paid  to  said  Hutchinson  in 
full ;  the  said  $100  loan,  however,  being  in  no  way  connected  with 
the  said  note  and  mortgage  for  $2,800.  At  the  times  when  Mulcahy 
Burd.Cas.Real  Peop. — 29 


450  MORTGAGES 

V 

made  said  payments  to  Hutchinson,  he  saw  Hutchinson  have  a  note 
with  the  figures  '$2,800'  in  the  left-hand  corner,  and  his  signature  at 
the  bottom;  and  said  Hutchinson  appeared  to  w'rite  on  the  back  of 
the  note,  sometimes  saying  to  Mulcahy :  'Yovi  don't  need  a  receipt. 
This  indorsement  will  answer.'  Said  Fenwick  received  from  said 
Hutchinson  the  sums  of  money  indorsed  on  the  back  of  the  said  $2,- 
800  note  held  by  Fenwick,  and  received  no  more  money  from  any 
source  on  account  of  said  note.  The  indorsements  on  the  back  of 
this  note  held  by  Fenwick  are  all  in  his  handwriting.  These  indorse- 
ments of  interest  were  made  by  said  Fenwick  on  or  about  the  dates 
when  the  various  sums  of  interest  were  paid  to  him  by  said  Hutchin- 
son. 

"If  the  statements  of  said  Hutchinson  to  Fenwick  are  admissible 
in  evidence,  it  is  shown  and  admitted  that  he  stated  to  said  Fenwick, 
at  the  time  that  he  made  the  first  payment  of  interest,  that  he  (Hutch- 
inson) was  having  other  money  transactions  with  said  Mulcahy,  that 
said  ^lulcahy  was  indebted  to  him  on  other  matters,  and  that  he 
(Hutchinson)  would  see  that  said  Fenwick  received  his  interest.  No 
talk  ever  took  place  between  said  Fenwick  and  said  Hutchinson  in 
regard  to  payments  of  any  part  of  the  principal.  Mulcahy  paid  the 
principal,  in  various  installments,  to  said  Hutchinson,  as  appears  from 
the  said  receipts;  the  last  being  March,  1891.  Said  Henry  Hunt 
Letteney,  to  whom  the  mortgage  and  note  were  made  payable,  was 
a  clerk  or  scrivener  in  the  said  Hutchinson's  office,  and  had  no  pecuni- 
ary interest  whatever  in  said  note  and  mortgage,  and  no  part  of  the 
consideration  came  from  him  or  through  his  hands ;  and  he  simply 
allowed  his  name  to  be  used  at  said  Hutchinson's  request,  as  he  was 
accustomed  to  do.  It  did  not  appear  that  said  Fenwick  ever  had  any 
yconversation  with  said  Hutchinson  relating  to  the  use  of  said  Let- 
teneys  name,  or  in  fact  knew  why  it  was  so  used,  or  made  any  in- 
quiries of  said  Hutchinson  in  regard  to  the  name.  Said  Fenwick 
never,  in  express  terms,  authorized  said  Letteney  or  said  Hutchinson 
to  collect  any  part  of  the  principal ;  and  the  said  Mulcahy  never  had 
any  conversation  with  the  said  Hutchinson  or  the  said  Letteney  as 
to  why  the  mortgage  was  made  to  run  to  said  Letteney,  instead  of  to 
said  Hutchinson.  In  July,  1892,  Joseph  B.  Fenwick,  the  defendant, 
called  at  the  plaintiffs'  house,  and  informed  them  that  he  held  a  mort- 
gage for  $2,800  on  their  estate  aforesaid.  That  was  the  first  notice 
that  the  plaintiffs  had  that  Fenwick,  or  any  one  except  Hutchinson 
ever  had  an  interest  in  the  note  and  mortgage,  although  Fenwick  and 
Mulcahy  both  lived  in  Chelsea,  and  Fenwick  knew  where  Mulcahy 
lived.  It  was  the  first  actual  notice  that  the  plaintiff's  had  received 
that  said  mortgage  had  been  assigned. 

"When  said  note  for  $2,800  was  delivered  to  Fenwick  by  Hutchin- 
son, it  was  not  indorsed,  and  remained  unindorsed  until  after  its  ma- 
turity, to  wit,  in  January,   1892,  the  defendant  Joseph   B.   Fenwick 


ASSIGNMENT   OF   MORTGAGES  451 

supposing  that  he  had  a  good  title  to  the  note.  After  the  maturity 
of  the  note,  he  took  it  to  said  Letteney,  and  requested  him  to  indorse 
it,  which  he  did.  writing  upon  the  back  of  the  note  these  words :  Tay 
to  Joseph  Fenwick  without  recourse.  Henry  Hunt  Letteney.'  Said 
Letteney  made  no  objection  to  indorsing  said  note,  and  did  so  with- 
out consideration,  when  requested  by  said  Fenwick  to  do  so.  Said 
Letteney  testified,  and  I  find,  that  the  reason  why  he  did  not  indorse 
said  note  before  its  maturity  was  because  he  was  not  requested  by 
said  Hutchinson  to  do  so.  Said  Fenwick  got  the  indorsement  of  said 
Letteney  at  the  suggestion  of  a  business  acquaintance.  Both  Fen- 
wick and  Mulcahy  had  had  separate  previous  deahngs  with  said 
Hutchinson  relating  to  real  estate  on  several  occasions.  On  two  such 
occasions,  Hutchinson  placed  $1,500  for  Fenwick  on  a  mortgage  of 
real  estate,  and  in  so  doing  received,  from  Fenwick,  Fenwick's  check 
for  $1,500,  payable  to  Hutchinson.  On  October  1,  1888,  Fenwick 
conveyed  real  estate  to  one  Elizabeth  B.  Cutter  through  Letteney, 
who  acted  simply  as  conduit  of  title,  and  as  Hutchinson's  clerk,  and 
at  Hutchinson's  request,  Hutchinson  being  the  agent  or  adviser  or 
counsel  of  Fenwick  for  the  purpose  of  completing  the  transaction,  but 
none  of  these  transactions  had  anything  to  do  with  the  subject  in  con- 
troversy. 

"The  assignment  from  Letteney  to  Fenwick  was  taken  by  Fen- 
wick without  question ;  the  said  Fenwick  having  confidence  in  said 
Hutchinson  on  account  of  his  official  and  professional  standing;  and 
his  high  reputation  in  the  community.  The  said  assignment  was  drawn 
in  Hutchinson's  office,  executed  there  by  said  Letteney  at  Hutchin- 
son's request,  and  in  Hutchinson's  presence.  The  defendant  Joseph 
B.  Fenwick,  however,  was  not  present  when  said  Letteney  executed 
said  assignment,  and  never  had  any  conversation  concerning  the  same 
until  he  asked  him  (Letteney)  to  indorse  the  note,  in  January,  1892, 
as  aforesaid.  Letteney  had  no  interest  in  said  assignment,  received 
no  part  of  the  consideration  for  it,  and  none  of  it  passed  through  his 
hands ;  Letteney  simply  acting  as  clerk  or  scrivener  for  said  Hutchin- 
son, at  Hutchinson's  request.  Said  Mulcahy  gave  said  mortgage  to 
Letteney  because  Hutchinson  presented  it  to  him  for  his  signature ; 
and  Fenwick  received  the  mortgage  from  Letteney  because  it  was 
assigned  to  him,  and  without  inquiry.  The  defendant  Mrs.  Fenwick 
took  an  assignment  from  her  husband,  Joseph  B.  Fenwick,  the  de- 
fendant, of  the  mortgage  and  note,  in  the  usual  form,  about  August 
1,  1892,  without  consideration,  and  through  a  third  party,  named  Mc- 
Vey.  About  August  1,  1892,  the  plaintiflfs  requested  the  defendants 
to  execute  a  discharge  of  the  mortgage,  and  to  surrender  the  note, 
and  they  refused  to  do  so. 

"Upon  the  above  facts  and  evidence,  I  reserve  the  case  for  the  con- 
sideration of  the  supreme  judicial  court,  in  banc." 


452  MORTGAGES 

Barker,  J.  The  case  is  reserved  by  a  justice  of  the  superior  court 
upon  facts  found  and  reported  by  him,  but  without  any  determina- 
tion or  adjudication  of  the  rights  of  the  parties.  The  question  wheth- 
er Hutchinson  was  the  agent  of  Fenwick,  and  as  such  agent  received 
and  collected  from  the  plaintiffs  the  principal  and  interest  of  the  mort- 
gage, is  one  raised  by  the  pleadings,  and  upon  it  the  plaintiff  has  the 
burden  of  proof.  The  facts  reported  are  as  consistent  with  the  the- 
ory that,  in  making  the  payments  which  he  made  to  Fenwick,  Hutchin- 
son was  acting  for  the  plaintiffs  or  for  himself  alone,  as  that  he  was 
an  agent  of  Fenwick.  The  plaintiffs  must  therefore  be  held  to  have 
failed  to  prove  that  the  payments  to  Hutchinson  were  in  effect  pay- 
ments to  Fenwick.  Upon  the  facts  reported,  the  plaintiffs  must  be 
held  to  have  made  the  payments  to  Hutchinson  at  their  own  risk. 
They  had  given  a  note  and  mortgage  to  one  Letteney,  who  was  a 
clerk  in  Hutchinson's  office,  and  they  assumed  that  Hutchinson  was 
the  real  party  in  interest,  and  made  their  payments  to  him  accord- 
ingly. The  note  was  payable  to  Letteney  or  order  in  three  years  from 
its  date,  and  on  the  day  after  its  date  the  note  and  mortgage  were 
sold  for  value  to  Fenwick,  and  delivered  to  him,  and  thereafter  kept 
in  his  possession.  The  assignment  of  the  mortgage  to  him  purported 
also  to  assign,  transfer,  and  set  over  to  him  the  note  and  claim  thereby 
secured ;  but  the  note  was  not  indorsed  by  Letteney  until  January, 
1892,  after  maturity.  The  payments  of  principal  were  made  to  Hutch- 
inson on  June  19,  1890,  November  7,  1890,  and  March  17,  1891. 

The  plaintiff's  had  no  actual  notice  of  Fenwick's  ownership  of  the 
note  and  mortgage,  and  he  gave  them  no  notice  that  he  was  in  any 
way  interested  in  the  matter.  As  Hutchinson  was  not  the  payee  of 
the  note,  he  had  no  apparent  right  to  receive  payment  upon  it ;  and, 
in  paying  to  him,  the  plaintiffs  acted  at  their  own  risk,  and  must  bear 
the  loss.  If  the  note  had  been  nonnegotiable,  instead  of  negotiable, 
and  not  indorsed  by  the  payee,  the  result  must  have  been  the  same. 
The  plaintiff's  undertook,  by  the  terms  of  the  mortgage,  to  pay  the 
debt  to  Letteney  "or  his  executors,  administrators,  or  assigns,"  and,  by 
the  note,  to  pay  it  to  Letteney  "or  order" ;  and  they  have  voluntarily 
chosen  to  pay  to  Hutchinson,  who  had  no  right,  either  from  Letteney 
or  the  real  owner,  to  receive  payment.  They  are  in  the  position  neither 
of  the  maker  of  a  negotiable  note  who  has  paid  it  in  due  course  of 
business  to  a  holder  who  produced  it  in  support  of  his  authority  to 
receive  payment,  nor  of  a  mortgagor  who  has  paid  to  his  mortgagee, 
having  no  knowledge  that  he  has  parted  with  the  mortgage. 

The  plaintiffs  contend  that  Letteney  could  not  maintain  an  action 
against  them  upon  the  note,  because  it  was  not  delivered  to  him,  and 
he  paid  no  consideration  for  it;  but  the  facts  reported  show  that  a 
full  consideration  moved  to  the  plaintiffs  for  the  note,  and  that  they 
delivered  both  note  and  mortgage  as  operative  instruments.    The  writ- 


ASSIGNMENT  OF  MORTGAGES  453 

ten  assignment  made  Fenwick  the  owner  of  the  note,  although  it  was 
not  indorsed,  and  payment  to  a  stranger  did  not  affect  his  rights. 

The  plaintiffs  also  contend  that  Fenwick  was  negligent  in  not  giv- 
ing the  plaintiffs  notice  of  the  assignment  before  the  maturity  of 
the  note,  and  that  he  should  therefore  bear  the  loss.  But  the  law 
does  not  impute  negligence  to  the  assignee  of  a  mortgage  because  he 
does  not  notify  the  mortgagor  that  he  has  taken  an  assignment,  or 
because  he  receives  interest  from  a  third  person,  who  ofl'ers  to  see 
that  he  receives  his  interest,  or  because  he  does  not  demand  payment 
at  the  maturity  of  the  mortgage.  Fenwick  owed  no  duty  to  the  plain- 
tiffs in  this  respect,  and  none  of  his  acts  stated  in  the  report  require 
the  inference  that  he  was  at  fault  with  reference  to  the  plaintiffs. 

The  result  is  that  the  plaintiffs  have  shown  no  right  to  have  the 
note  and  mortgage  canceled,  and  their  bill  should  be  dismissed,  with- 
out prejudice  to  their  right  to  redeem,  on  paying  the  principal  of  the 
mortgage,  with  interest,  from  June  7,  1892 ;  and  a  decree  to  that  ef- 
fect is  to  be  entered  in  the  superior  court.     So  ordered.^^ 

12  It  will  be  noted  that  in  the  preceding  case  (Mulcahy  v.  Fenwick)  the  ques- 
tion of  payment  to  the  original  mortgagee  after  the  assignment  of  a  mortgage 
is  not  raised.  The  payment  was  made  to  a  third  person,  Hutchinson,  who 
was,  in  fact,  neither  mortgagee  nor  assignee.  With  reference,  however,  to 
payments  to  a  mortgagee  after  the  mortgage  has  been  assigned,  the  mortgagor 
will  be  protected  in  such  payments  if  he  has  no  notice,  either  actual  or  con- 
structive, of  the  assignment.  The  mortgagor  is  justified,  in  other  words,  in 
paying  to  the  mortgagee  until  he  has  notice  of  the  assignment.  Rice  v.  Jones, 
71  Ala.  551  (1882)  ;  Bartholf  v.  Bensley,  2Si  111.  336,  84  N.  E.  928  (1908)  ; 
Castle  V.  Castle,  78  Mich.  298,  44  N.  W.  378  (1889)  ;  Fox  v.  Cipra,  5  Kan. 
App.  312,  48  Pac.  452  (1896)  (see,  however,  Burhans  v.  Hutcheson.  25  Kan. 
625,  37  Am.  Rep.  274  [1881])  ;  Robbins  v.  Larson,  69  Minn.  436,  72  N.  W.  456, 
65  Am.  St.  Rep.  572  (1897)  ;  Van  Keuren  v.  Corkins,  66  N.  Y.  77  (1876).  In 
some  states,  however,  under  the  recording  statutes,  the  mere  recording  of  an 
assignment  is  notice  to  the  mortgagor  of  the  assignment.  Detwilder  v.  Heck- 
enlaible,  63  Kan.  627,  66  Pac.  653  (1901)  (see,  however,  Burhans  v.  Hutche- 
son, supra)  ;  Cornish  v.  Woolverton,  32  Mont.  456,  81  Pac.  4,  108  Am.  St. 
Rep.  598  (1905).  In  other  states,  however,  a  mere  recording  of  an  assignment 
is  not  notice  to  the  mortgagor.  There  must  be  actual  knowledge  of  the  as- 
signment. Goodale  v.  Patterson,  51  Mich.  532,  16  N.  W.  890  (18S3)  ;  Robbins 
v.  Larson,  supra ;  Foster  v.  Carson,  147  Pa.  157,  23  Atl.  342  (1892) ;  Id.,  159 
Pa.  477,  28  Atl.  356,  39  Am.  St.  Rep.  696  (1894).  Interest  coupons,  when  de- 
tached from  the  mortgage  note,  become  transferable  by  indorsement  apart 
from  the  note,  and  the  fact  that  such  coupons,  when  pi*esented  to  the  maker 
for  payment,  bear  an  indorsement  transferring  them  to  another,  does  not,  in 
itself,  constitute  notice  that  the  mortgage  note  has  also  been  transferred. 
McVay  V.  Bridgman,  21  S.  D.  374,  112  N.  W.  1138  (1907).  In  making  final 
payment  of  the  mortgage  debt,  however,  and,  according  to  some  cases,  in  mak- 
ing any  partial  payment  on  the  principal,  the  mortgagor,  who  pays  the  mort- 
gagee after  the  latter  has  assigned  it,  does  so  at  his  peril,  unless  he  demands 
the  production  of  the  mortgage  and  note  for  cancellation.  Baumgartner  v. 
Peterson,  93  Iowa,  572,  62  N.  W.  27  (1895)  ;  Murphy  v.  Barnard,  162  Mass. 
72,  38  N.  E.  29.  44  Am.  St.  Rep.  340  (1894)  ;  Wilson  v.  Campbell,  110  Mich.  580, 
68  N.  W.  278,  35  L.  R.  A.  544  (1896)  ;  Mead  v.  Leavitt,  59  N.  H.  476  (1879). 
See,  however,  Olson  v.  Northwestern  Guaranty  Loan  Co.,  65  Minn.  475,  68 
N.  W.  100  (1896). 


454  MORTGAGES 

(B)  Priority  and  Notice 

I.  Notice  by  Registration  ^' 

1.  Actual   Notice 


See  Neligli  v.  Michenor,  ante,  p.  405. 


2.  Place  of  Registration 


KENNEDY  v.  HARDEN. 
(Supreme  Court  of  Georgia,  1893.    92  Ga.  230,  18  S.  E.  542.) 

Error  from  superior  court,  Gwinnett  county ;  N.  L.  Hutchins,  Judge. 

Action  in  ejectment  by  William  S.  Harden  and  others  against  J.  R. 
Kennedy.  A  special  issue  was  joined,  and  tried  separately,  resulting 
in  a  verdict  for  defendant.  This  verdict  having  been  set  aside,  and  a 
new  trial  granted,  defendant  brings  error.     Affirmed,  with  directions. 

The  following  is  the  official  report : 

An  action  of  ejectment,  upon  the  demise  of  Martha  A.  and  Mary 
Bagley  and  William  S.  Harden,  and  upon  other  demises,  against  J.  R. 
Kennedy,  for  certain  land  in  Gwinnett  county,  came  on  to  be  tried ; 
and,  pending  the  trial,  plaintiffs  offered  in  evidence  a  certified  copy  of 
an  agreement  or  deed  made  by  the  heirs  at  law  and  distributees  of  Rob- 
ert Harkness  to  plaintiffs,  as  remainder-men,  to  the  premises  in  dis- 
pute. Defendant  filed  an  affidavit,  under  section  2712  of  the  Code, 
alleging  that,  to  the  best  of  his  knowledge  and  belief,  the  deed  was  a 
forgery,  whereupon  the  trial  of  the  case  was  arrested  and  a  special  is- 
sue on  the  affidavit  made  up  and  submitted  to  the  jury,  and  a  verdict 
rendered,  finding  the  deed  to  be  a  forgery.  Plaintiffs  moved  for  a 
new  trial  upon  the  grounds  that  the  verdict  was  contrary  to  law  and 
evidence,  and  because  the  court  erred  in  overruling  the  motion  of 
plaintiffs'  counsel  to  dismiss  the  affidavit  of  defendant  for  the  reason 
that  a  certified  copy  of  an  ancient  registered  deed  or  title  paper  could 
not  be  attacked  in  this  way.  This  motion  was  granted  the  court  be- 
low, in  the  order  granting  the  motion,  stating  that  being  in  doubt  as 
to  the  law  of  the  case  on  the  issue  made,  and  the  ends  of  justice  seem- 
ing to  require  it,  the  motion  was  sustained.  To  this  decision  the  de- 
fendant excepted.  It  does  not  appear  what  disposition  has  been  made 
of  the  main  case,  or  whether  anything  was  done  with  it  after  the  ver- 
dict on  the  special  issue.     There  had  been  a  previous  verdict  in  favor 

18  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  199. 


NOTICE    BY   REGISTRATION  455 

of  defendant  upon  his  plea  of  the  general  issue,  and  a  motion  for  a 
new  trial  made  by  the  plaintiffs  was  overruled,  and  the  case  brought 
to  this  court,  by  which  the  decision  of  the  court  below  was  reversed. 
85  Ga.  703,  11  S.  E.  1091. 

Upon  the  trial  of  the  special  issue  as  to  the  forgery  of  the  paper,  it 
was  admitted  that  the  courthouse  and  records  of  Gwinnett  county, 
where  the  action  was  pending,  were  burned  in  1871.  The  instrument 
in  question  purported  to  have  been  made  in  Forsyth  county,  by  heirs 
and  distributees  of  the  estate  of  Robert  Harkness,  in  settlement  of 
the  estate,  making  certain  disposition  of  the  lands  which  belonged 
to  Robert  Harkness,  and  which  his  widow  acquired  after  his  death,  ly- 
ing in  Gwinnett  and  Forsyth  counties ;  appoir^ting  R.  W.  M.  Harkness 
trustee,  etc.,  and  bore  date  April  4,  1849.  It  appeared  to  be  attested 
by  one  Connally,  by  Evaline  E.  Harkness,  and  by  W.  J.  Lawrence,  and 
to  have  been  recorded  in  Forsyth  county  March  9,  1850,  and  in  Gwin- 
nett county  July  25,  1887.  The  instrument  was  apparently  signed  by 
Dorcas,  R.  W.  M.,  John  C.,  and  James  P.  Harkness,  by  W.  J.  and  R. 
C.  Lawrence,  by  William  and  E.  A.  Connally  and  W.  J.  Russell,  for- 
mer trustee,  and  appeared  to  have  been  attested  by  Gordon,  a  justice 
of  the  inferior  court,  as  to  Russell,  separately  from  the  attestation 
above  mentioned.  W.  S.  Harden  testified  that  he  believed  the  original 
of  this  agreement  had  been  lost  or  destroyed ;  that  the  same  was  not  in 
his  power  or  custody ;  that  the  witnesses  to  it  were  all  dead,  except 
Connally,  and  he  (witness)  did  not  know  whether  Connally  was  dead 
or  alive ;  that  Connally  moved  from  Georgia  to  Arkansas  many  years 
ago ;  that  Elizabeth  A.  Harkness  married  William  Connally ;  that  the 
original  never  was  in  witness'  possession,  and  he  did  not  know  that  he 
ever  saw  it,  but  may  have  seen  a  copy.  The  following  appeared  from 
the  evidence  of  W.  S.  and  Harmon  Bagley:  Neither  of  them  was 
present  when  the  agreement  was  signed.  R.  W.  M.  and  James  P. 
Harkness  and  W.  J.  Lawrence,  who  married  Rosanna  C,  stated  to 
W.  S.  Bagley  that  they  had  :nade  a  settlement,  and  that  R.  W.  M. 
Harkness  had  been  appointed  trustee,  instead  of  W.  J.  Russell.  They 
knew  the  persons  who  witnessed  the  agreement.  Evaline  Harkness  is 
dead.  Connally  is  alive,  or  went  to  Texas.  W.  J.  Lawrence  went  to 
California,  and  they  did  not  know  whether  he  was  dead  or  not.  Gor- 
don is  dead.  The  witnesses  did  not  know  what  had  become  of  the 
•  original  agreement,  and  Harmon  Bagley  did  not  remember  ever  see- 
ing a  copy  of  it.  W.  S.  Bagley,  to  the  best  of  his  recollection,  saw  a 
certified  copy  of  the  original  in  possession  of  R.  W.  M.  Harkness  be- 
tween 1865  and  1870.  EvaHne  Harkness  was  R.  W.  M.  Harkness' 
wife.  W.  J.  Lawrence  was  a  son-in-law  of  Robert  Harkness.  W.  J. 
Russell  was  trustee  for  Dorcas  Harkness  and  her  children,  appointed 
by  the  will,  for  the  property  of  the  estate  of  Robert  Harkness  willed 
to  his  wife,  Dorcas,  and  her  children.  It  further  appeared  that  the 
certified  copy  had  been  compared  with  the  original  record  in  Forsyth 


456  MORTGAGES 

county,  and  found  to  be  an  exact  copy,  and  that  W.  J.  Russell  is  dead. 
For  the  defendant,  only  one  witness,  E.  A.  Connally,  was  introduced. 
He  testified  that  he  had  never  heard  of  an  agreement,  and  never  signed 
any  agreement  whatever ;  that  he  never  signed  any  title  to  the  lands ; 
that  he  was  acquainted  with  Wils  Connally,  one  of  the  alleged  attesting 
witnesses,  with  Evaline  Harkness  and  W.  J.  Lawrence,  and  they  were 
all  dead,  so  far  as  he  knew. 

Bleckley,  C.  J.  The  Code,  in  section  2712,  provides  that  "a  reg- 
istered deed  shall  be  admitted  in  evidence  in  any  court  in  this  state 
without  further,  proof,  unless  the  maker  of  the  deed,  or  one  of  his 
heirs,  or  the  opposite  party  in  the  cause,  will  file  an  affidavit  that  the 
said  deed  is  a  forgery,  to  the  best  of  his  knowledge  and  belief,  when 
the  court  shall  arrest  the  cause  and  require  an  issue  to  be  made  and 
tried  as  to  the  genuineness  of  the  alleged  deed."  The  issue  which 
this  provision  contemplates  can  be  raised  only  when  there  is  a  deed 
produced  which  is  registered,  and  which,  on  account  of  its  registration, 
is  admissible  in  evidence  on  the  trial  of  the  main  cause.  Here  no  deed 
w'as  produced  which  had  been  registered.  The  document  produced  was 
a  certified  copy  of  a  deed  registered  in  Forsyth  county,  the  copy  being 
authenticated  as  one  made  from  the  record  of  deeds  in  that  county. 
This  copy,  as  we  infer  from  the  transcript  before  us,  had  been  record- 
ed in  Gwinnett,  the  county  in  which  the  suit  was  pending.  But  there 
is  no  statute,  and  never  has  been,  so  far  as  we  are  aware,  authorizing 
a  certified  copy  taken  from  the  record  of  deeds  in  one  county  to  be 
recorded  in  another  county.  The  scheme  of  the  recording  acts  is  to 
record  the  originals  of  deeds,  not  copies  of  them,  though,  probably, 
in  the  case  of  lost  or  destroyed  deeds,  a  duly-established  copy  might 
be  recorded  the  same  as  an  original.  Although  the  deed  recorded  in 
Forsyth  county  conveyed  land  lying  in  that  county,  as  well  as  the 
tract  lying  in  Gwinnett,  and  now  in  controversy,  the  original,  even  if  it 
had  been  produced,  would  not  have  been  admissible  in  evidence  as  a 
registered  deed,  so  far  as  the  land  in  Gwinnett  county  is  concerned, 
for  it  had  not  been  recorded  in  Gwinnett,  but  only  in  Forsyth ;  and, 
while  this  record  was  good  as  to  the  Forsyth  lands,  it  had  no  efficacy 
as  to  the  Gwinnett  land,  for  the  place  of  recording  deeds  is  the  coun- 
ty in  which  the  land  lies.  Code,  §  2705.  Where  the  same  deed  em- 
braces land  in  two  or  more  counties,  it  must  be  recorded  in  each  of  the 
counties,  in  order  to  render  it  admissible  in  evidence  as  to  all  the 
land  it  covers.  If  recorded  in  one  county  only,  that  recording  is  good 
as  to  the  land  lying  therein,  but  not  as  to  the  other  lands.  It  is 
manifest,  we  think,  that  the  section  of  the  Code  above  quoted  has 
l)een  misconstrued  and  misapplied  in  this  proceeding,  the  facts  not 
being  such  as  to  warrant  the  raising  or  the  trial  of  a  separate  issue  of 
forgery. 

2.  The  whole  proceeding  being  outside  of  the  statute  under  which 
the  issue  was  formed  and  tried,  it  was  not  error  to  set  aside  the  ver- 


NOTICE   BY    REGISTRATION  457 

diet,  but  a  new  trial  would  be  idle  and  fruitless.  Therefore,  direction 
is  given  that  the  afifidavit  raising  the  issue  be  dismissed.  Judgment  af- 
firmed, with  direction. 


3.  To  Whom  Record  is  Notice 


MORSE  V.  CURTIS. 

(Supreme  Judicial  Court  of  Massachusetts,  1885.    140  Mass.  112,  2  N.  E.  929, 

54  Am.  Rep.  456.) 

Morton,  C.  J.  This  is  a  writ  of  entry.  Both  parties  derive  their 
title  from  one  Hall.  Hall  mortgaged  the  land  to  the  demandant, 
August  8,  1872.  On  September  7,  1875,  Hall  mortgaged  the  land  to 
one  Clark,  who  had  notice  of  the  earlier  mortgage.  The  mortgage 
to  Clark  was  recorded  January  31,  1876.  The  mortgage  to  the  de- 
mandant was  recorded  September  8,  1875.  On  October  4,  1881,  Clark 
assigned  his  mortgage  to  the  tenant,  who  had  no  notice  of  the  mort- 
gage to  the  demandant.  The  question  is,  which  of  these  titles  has 
priority?  The  same  question  was  distinctly  raised  and  adjudicated 
in  the  two  cases  of  Connecticut  v.  Bradish,  14  Mass.  296,  and  Trull 
V.  Bigelow,  16  Mass.  406,  8  Am..  Dec.  144.  These  adjudications  es- 
tablish a  rule  of  property  which  ought  not  to  be  unnoticed,  except 
for  the  strongest  reasons.  It  is  true  that  in  the  late  case  of  Flynt  v. 
Arnold,  2  Mete.  619,  Chief  Justice  Shaw  expresses  his  individual 
opinion  against  the  soundness  of  these  decisions;  but  in  that  case  the 
decision  of  the  court  was  distinctly  put  upon  that  ground,  and  his 
remarks  can  be  only  considered  in  the  light  of  dicta,  and  not  as  over- 
ruling the  earlier  adjudications. 

Upon  careful  consideration,  the  reasons  upon  which  the  earlier 
cases  were  decided  seem  to  us  the  more  satisfactory  because  they  fol- 
low the  spirit  of  our  registry  laws  and  the  practice  of  the  profession 
under  them.  The  earliest  registry  law  provides  that  no  conveyance 
of  land  shall  be  good  and  effectual  in  law  "against  any  other  person  or 
persons  but  the  grantor  or  grantors,  and  their  heirs  only,  unless  the 
deed  or  deeds  thereof  be  acknowledged  and  recorded  in  manner  afore- 
said." St.  1783,  c.  VJ ,  §  4.  Under  this  statute  the  court,  at  an  early 
period,  held  that  the  recording  was  designed  to  take  the  place  of  the 
notorious  act  of  livery  of  seizin,  and  that  though  by  the  first  deed 
the  title  passed  out  of  the  grantor  as  against  himself,  yet  he  could,  if 
such  deed  was  not  recorded,  convey  a  good  title  to  an  innocent  pur- 
chaser who  received  and  recorded  his  deed.  But  the  court  then  held 
that  a  prior  unrecorded  deed  would  be  valid  against  a  second  purchaser 
who  took  his  deed  with  a  knowledge  of  the  prior  deed,  thus  ingrafting 
an  exception  upon  the  statute.  3  Mass.  575 ;  Marshall  v.  Fisk,  6  Mass. 
24,  4  Am.  Dec.  76.  This  exception  was  adopted  on  the  ground  that  it 
was  a  fraud  in  the  second  grantee  to  take  a  deed  if  he  had  knowledge 


458  MORTGAGES 

of  the  prior  deed.  As  Chief  Justice  Shaw  forcibl}'  says  in  Lawrence 
V.  Stratton,  6  Cush.  163,  the  rule  is  "put  upon  the  ground  that  a  party 
with  such  notice  could  not  take  a  deed  without  fraud;  the  objection 
was  not  to  the  nature  of  the  conveyance,  but  to  the  honesty  of  the 
taker,  and  therefore,  if  the  estate  had  passed  through  such  taker  to 
a  bona  fide  purchaser  without  fraud,  the  conveyance  was  held  valid." 
This  exception  by  judicial  exposition  was  afterwards  ingrafted,  upon 
the  statute,  and  somewhat  extended  by  the  legislature.  Rev.  St.  59, 
p.  28;  Gen.  St.  c.  59,  §  31 ;  Pub.  St.  c.  120,  §  4.  It  is  to  be  observed 
that  in  each  of  these  revisions  it  is  provided  that  an  unrecorded  prior 
deed  is  not  vahd  against  any  person  except  the  grantor,  his  heirs  and 
devisees,  "and  persons  having  actual  notice  of  it."  The  reason  why 
the  statutes  require  actual  notice  to  a  second  purchaser,  in  order  to 
defeat  his  title,  is  apparent ;  its  purpose  is  that  his  title  shall  not  pre- 
vail against  the  prior  deed  if  he  has  been  guilty  of  a  fraud  upon  the 
first  grantee,  and  he  could  not  be  guilty  of  such  fraud  unless  he  had 
actual  notice  of  the  first  deed. 

Now,  in  the  case  before  us,  it  is  found  as  a  fact  that  the  tenant  had 
no  actual  knowledge  of  the  prior  mortgage  to  the  demandant  at  the 
time  he  took  his  assignment  from  Clark.  But  it  is  contended  that  he 
had  constructive  notice,  because  the  demandant's  mortgage  was  record- 
ed before  such  assignment.  It  was  held  in  Connecticut  v.  Bradish, 
supra,  that  such  record  was  evidence  of  actual  notice,  but  was  not  of 
itself  enough  to  show  actual  notice,  and  to  charge  the  assignee  of  the 
second  deed  with  a  fraud  upon  the  holder  of  the  first  unrecorded  deed. 
This  seems  to  us  to  accord  with  the  spirit  of  our  registry  laws,  and  the 
uniform  understanding  of  and  practice  under  them  by  the  profession. 
These  laws  not  only  provide  that  deeds  must  be  recorded,  but  they 
also  prescribe  the  method  in  which  the  records  shall  be  kept  and  in- 
dexes prepared  for  public  inspection  and  examination.  Pub.  St.  c. 
24,  §§  14—26.  There  are  indexes  of  grantors  and  grantees,  so  that,  in 
searching  a  title,  the  examiner  is  obliged  to  run  down  the  list  of 
grantors  or  run  backward  through  the  list  of  grantees.  If  he  can  start 
with  an  owner  who  is  known  to  have  a  good  title,  as  in  the  case  at  bar 
he  could  start  with  Hall,  he  is  obliged  to  run  through  the  index  of 
j^rantors  until  he  finds  a  conveyance  by  the  owner  of  the  land  in  ques- 
tion. After  such  conveyance  the  former  owner  becomes  a  stranger  to 
the  title,  and  the  examiner  must  follow  down  the  name  of  the  new 
owner  to  see  if  he  has  conveyed  the  land,  and  so  on.  It  would  be  a 
hardship  to  require  an  examiner  to  follow  in  the  index  of  grantors 
the  name  of  every  person  who  at  any  time,  through,  perhaps,  a  long 
chain  of  title,  was  the  owner  of  the  estate. 

We  do  not  think  this  is  the  practical  construction  which  lawyers 
and  conveyancers  have  given  to  our  registry  laws.  The  inconvenience 
of  such  a  construction  would  be  much  greater  than  would  be  the  in- 
convenience of  requiring  a  person  who  has  neglected  to  record  his 
prior  deed  for  a  time,  to  record  it,  and  to  bring  a  bill  in  equity  to  set 


NOTICE   BY    REGISTRATION 


459 


aside  the  subsequent  deed,  if  it  was  taken  in  fraud  of  his  rights.  The 
better  rule,  and  the  least  likely  to  create  confusion  of  titles,  seems  to 
us  to  be  that  if  a  purchaser,  upon  examining  the  registry,  finds  a  con- 
veyance from  the  owner  of  the  land  to  his  grantor  which  gives  him 
a  perfect  record  title,  complete  by  what  the  law  at  the  time  it  is  record- 
ed regards  as  equivalent  to  a  livery  of  seizin,  he  is  entitled  to  rely 
upon  such  recorded  title,  and  is  not  obliged  to  search  the  record  after- 
wards made,  to  see  if  there  has  been  any  prior  unrecorded  deed  of  the 
original  owners. 

This  rule  of  property,  established  by  the  early  case  of  Connecticut 
V.  Bradish,  supra,  ought  not  to  be  departed  from  unless  conclusive 
reasons  therefor  can  be  shown.  We  are  therefore  of  opinion  that  in 
the  case  at  bar  the  tenant  has  the  better  title.    Verdict  set  aside. 


DOW  V.  WHITNEY. 
(Supreme  .Judicial  Court  of  Massachusetts,  1888.     147  Mass.  1,  10  X.  E.  722.) 

Appeal  from  supreme  judicial  court,  Suffolk  county. 

Bill  in  equity  by  Celende  T.  Dow  against  Henry  M.  Whitney,  to 
compel  .specific  performance  of  an  agreement  to  purchase  a  tract  of 
land  in  Brookline.  The  defendant  objected  to  the  plaintiff's  title  on 
the  ground  that  it  was  subject  to  possible  unrecorded  deeds  of  one 
Stephen  Dow,  under  whom  the  plaintiff  claimed,  and  to  unrecorded 
deeds  of  Alfred  A.  Dow,  under  whom  also  the  plaintiff  claimed.  The 
supreme  judicial  court,  after  a  hearing,  ordered  the  defendant  to  carry 
out  his  part  of  the  agreement,  and  he  appealed.  The  facts  sufficiently 
appear  in  the  opinion. 

Morton,  C.  J.  Stephen  Dow,  by  his  deed  dated  October  1,  1878, 
conveys  to  "Alfred  A.  Dow,  his  heirs  and  assigns,  all  my  interest  in  all 
that  lot  of  land,  with  the  buildings  thereon,  situated  on  Corey  hill,  in 
Brookline."  Then  follows  a  description  of  the  lot  by  metes  and  bounds. 
After  the  description  is  the  following:  "Being  the  same  premises  con- 
veyed to  me  by  S.  A.  Robinson  et  al.,  also  by  Otis  Withington,  by  deed 
dated  November  2,  1857,  and  recorded  with  Norfolk  Deeds,  book  261, 
page  279;"  "hereby  conveying  to  said  grantee  all  the  land  conveyed 
to  me  by  the  deeds  aforesaid,  except  such  portions  thereof  as  I  have 
heretofore  sold."  The  deeds  from  Robinson  and  Withington  conveyed 
to  Dow  a  large  tract  of  land,  which  included  the  premises  in  question, 
and  he  had,  before  this  deed  of  the  premises  was  made,  conveyed  por- 
tions of  this  larger  tract,  by  deeds  duly  recorded.  It  is  clear  that  the 
clause  last  quoted,  was  not  intended  to  limit  the  prior  granting  clause 
of  the  deed,  or  to  alter  the  description,  but  was  inserted  for  the  pur- 
pose of  showing  the  grantor's  chain  of  title.  I,ovejoy  v.  Lovett,  124 
Mass.  270. 

The  principal  question  in  this  case  is  whether  the  deed  of  Stephen 
Dow  conveyed  to  the  grantee  a  title  which  is  superior  to  that  of  any 


4G0  MORTGAGES 

grantee  by  a  prior  unrecorded  deed  of  the  grantor.  This  question  was 
fully  considered  and  discussed  in  Woodward  v.  Sartwell,  129  Mass. 
210.  In  that  case  it  was  held  that  a  deed  by  an  officer,  upon  a  sale  on 
execution,  of  "all  the  right,  title,  and  interest"  of  the  judgment  debtor 
in  land  specifically  described  in  the  deed,  took  precedence  of  a  prior 
unrecorded  deed  of  the  judgment  debtor,  and  conveyed  to  the  purchas- 
er a  good  title.  The  court  put  the  decision  upon  the  ground  that  an 
attaching  creditor  has  the  same  standing  as  a  bona  fide  purchaser,  and 
that  the  deed  of  the  officer  "is  equivalent  to  a  conveyance  made  by 
the  debtor  at  the  time  the  attachment  was  made ;  and  in  the  case  at 
bar,  as  the  record  title  then  stood  in  the  name  of  the  debtor,  as  to  bona 
fide  purchasers,  he  was  the  owner  of  the  land."  We  are  satisfied  that 
these  views  are  correct.  We  can  see  no  sound  distinction  between  a 
deed  made  by  an  officer  upon  a  sale  on  execution,  and  a  deed  made 
by  the  debtor  himself.  In  either  case  the  deed  conveys  all  the  title 
which  the  debtor  had,  and  no  more;  but  a  prior  unrecorded  deed  has 
no  effect  except  as  between  the  parties  to  it,  and  others  having  notice 
of  it,  and,  as  to  creditors  and  purchasers,  leaves  the  title  in  the  grantor. 
Earle  v.  Fiske,  103  Mass.  491.  A  deed  of  "all  the  right,  title,  and  in- 
terest," or  of  "all  the  interest,"  of  the  grantor  in  a  lot  of  land,  conveys 
the  same  title  as  a  deed  of  the  land.  It  is  the  policy  of  our  laws  that 
a  purchaser  of  land,  by  examining  the  registry  of  deeds,  may  ascer- 
tain the  title  of  his  grantor.  If  there  is  no  recorded  deed,  he  has  the 
right  to  assume  that  the  record  title  is  the  true  title.  The  law  has  es- 
tablished the  rule,  for  the  protection  of  creditors  and  purchasers,  that 
an  unrecorded  deed,  if  unknown  to  them,  is,  as  to  them,  a  mere  nullity. 
The  reasons  for  the  rule  apply  with  equal  force  in  the  case  of  a  deed 
of  the  grantor's  right,  title,  and  interest,  as  of  a  deed  of  the  land. 

We  are  of  opinion,  therefore,  that  the  deed  of  Stephen  Dow  con- 
veyed to  his  grantee  a  title  which  is  good  against  any  prior  deed,  if 
unrecorded.  To  hold  otherwise  would  defeat  the  purpose  of  the  reg- 
istration laws,  and  create  confusion  in  the  titles  to  lands.  It  is  to  be 
noticed  that  the  deed  in  this  case  contains  a  specific  description  of  the 
land  intended  to  be  conveyed,  and  contains  the  usual  covenants  of  war- 
ranty. The  case  is  thus  distinguished  from  a  class  of  cases  relied  upon 
by  the  defendant,  in  which  it  has  been  held  that,  where  a  deed  contains 
no  particular  description,  but  only  a  general  description,  like  "all  my 
land,"  or  "all  the  land  I  have  in  Boston,"  or  other  similar  general 
description,  it  does  not  take  precedence  of  prior  unrecorded  deeds  of 
the  grantor.  See  Adams  v.  Cuddy,  13  Pick.  460,  25  Am.  Dec.  330; 
Aqueduct  Corp.  v.  Chandler,  9  Allen,  159;  Fitzgerald  v.  Libby,  142 
Mass.  235,  7  N.  E.  917.  In  each  of  those  cases  the  question  was  not 
as  to  the  effect  of  a  prior  unrecorded  deed  of  the  same  land,  but  it 
was  whether  the  land  previously  sold  was  included  within  the  descrip- 
tion of  the  later  deed.  In  other  words,  it  was  a  question  of  the  con- 
struction of  the  deed  relied  upon.  No  such  question  can  arise  in  the 
case  at  bar,  as  the  description  of  the  land  intended  to  be  conveyed  is 


NOTICE   BY  REGISTRATION  461 

specific  and  exact.  The  same  considerations  apply  to  the  deed  from 
Alfred  A.  Dow  to  the  plaintiff. 

The  defendant  contends  that  specific  performance  of  his  contract 
ought  not  to  be  decreed,  because,  if  compelled  to  take  a  conveyance, 
he  may  afterwards  be  exposed  to  litigation  to  defend  his  title.  It  is 
not  known  that  there  is  any  unrecorded  deed  made  by  Stephen  Dow 
or  Alfred  A.  Dow.  The  only  alleged  defect  is  that  there  is  a  possibil- 
ity that  there  is  such  a  deed,  and  that  the  grantee  in  it  may  hereafter 
appear  and  contest  the  defendant's  title.  The  defendant  ought  not  to 
be  required  to  accept  a  title  that  is  doubtful.  But  in  this  case  there  is 
no  reasonable  doubt  that  the  plaintiff's  deed  conveys  a  good  title.  Its 
validity  depends  upon  a  pure  question  of  law,  and  no  question  of  fact 
is  involved.  The  mere  possibility  that  a  claimant  may  hereafter  appear, 
and  ask  the  court  to  overturn  a  well-settled  rule  of  law,  is  not  such  a 
defect  or  doubt  in  the  title  as  ought  to  lead  the  court,  in  its  discretion, 
to  deny  to  the  plaintiff  the  right  in  equity  to  a  specific  performance 
of  the  contract.  Hayes  v.  Cemetery,  108  Mass.  400 ;  Chesman  v.  Cum- 
mings,  142  Mass.  65,  7  N.  E.  13. 

As  the  parties  agree  to  the  form  of  the  decree  entered  by  the  justice 
who  heard  the  case,  it  should  therefore  be  affirmed. 


JOHNSON  V.  WILLIAMS. 

(Supreme  Court  of  Kansas,  1887.     37  Kan.  179,  14  Pac.  537, 
1  Am.  St.  Rep.  243.) 

Error  from  district  court,  Elk  county. 

Valentine,  J.  This  was  an  action  in  the  nature  of  ejectment, 
brought  in  the  district  court  of  Elk  county  by  D.  H.  William.s  against 
Samuel  M.  Johnson  for  the  recovery  of  certain  real  estate  in  said 
county.  The  record  clearly  shows  that  Williams  is  the  legal  owner 
of  the  land  in  controversy,  unless  his  title  thereto  has  been  divested 
by  a  certain  tax  deed,  and  other  proceedings  founded  thereon,  which 
will  be  hereafter  mentioned.  On  September  17,  1881,  the  aforesaid 
tax  deed  was  executed  by  the  county  clerk  of  Elk  county  to  Anna  Eby, 
and  was  recorded  on  September  20,  1881.  On  September  20,  1881, 
Anna  Eby  executed  a  quitclaim  deed  for  the  land  to  Lark  Vinson, 
which  deed  was  recorded  on  December  10,  1881.  On  September  26, 
1881,  Vinson  commenced  an  action  in  the  district  court  of  Elk  coun- 
ty against  the  said  defendant  D.  H.  Williams  and  others  to  quiet  his 
title  to  the  property  in  controversy,  and  obtained  service  of  summons 
only  by  publication.  On  December  8,  1881,  a  judgment  was  rendered 
in  that  action,  quieting  Vinson's  title  as  against  all  the  defendants  in 
that  action.  On  December  10,  1881,  Vinson  executed  a  quitclaim 
deed  for  the  property  to  Richard  M.  Roe,  which  deed  was  recorded 
on  December  19,  1881.  On  July  22,  1882,  said  Roe,  by  his  quitclaim 
deed,  remised,  released,  and  quitclaimed  unto  Samuel  M.  Johnson,  the 


4G2  MORTGAGES 

plaintiff  in  error,  defendant  below,  all  his  right,  title  and  interest  in 
and  to  the  land,  which  deed  was  duly  recorded  on  July  25,  1882.  On 
October  12,  1882,  Williams  filed  his  motion  in  the  district  court  of  Elk 
county  to  open  up  said  judgment  under  section  11  of  the  Civil  Code; 
and  such  proceedings  were  had  that  on  November  8,  1883,  the  mo- 
tion was  sustained,  and  Williams  permitted  to  defend  in  the  action. 
On  M^rch  7,  1884,  a  trial  was  had  in  the  action,  and  judgment  was 
rendered  in  favor  of  Williams  and  against  Vinson,  decreeing  Wil- 
liams to  be  the  owner  in  fee-simple  of  the  land,  and  quieting  his  title 
as  against  Vinson  and  all  persons  claiming  under  him.  This  present 
action  of  ejectment  was  commenced  on  August  8,  1884,  and  was  tried 
before  the  court  without  a  jury,  and  judgment  was  rendered  in  favor 
of  Williams  and  against  Johnson  for  the  recovery  of  the  land  and  for 
costs ;  and  Johnson,  as  plaintiff  in  error,  brings  the  case  to  this  court 
for  review. 

It  is  admitted  that  Johnson,  in  purchasing  the  property,  paid  value 
therefor,  and  at  the  time  had  no  knowledge  of  the  claim  of  Williams ; 
or,  in  other  words,  it  is  admitted  that  Johnson  was  "a  purchaser  in 
good  faith"  of  the  property,  provided  a  purchaser  taking  a  quitclaim 
deed  for  the  property  can  be  "a  purchaser  in  good  faith."  In  this  state 
a  quitclaim  deed  to  land  will  convey  to  the  grantee  all  the  rights,  in- 
terests, title,  and  estate  of  the  grantor  in  and  to  the  land,  unless  other- 
wise specified  by  the  deed  itself.  Conveyance  Act,  §  2 ;  Utley  v.  Fee, 
33  Kan.  683,  691,  7  Pac.  555.  Such  deed  will  convey  such  of  the  cove- 
nants of  former  grantors  as  run  with  the  land,  (Scoffins  v.  Grand- 
staff,  12  Kan.  467;)  and  the  grantee  in  the  quitclaim  deed  will  be  enti- 
tled to  such  further  title  or  estate  as  may  inure  at  any  time  to  the  gran- 
tees of  such  former  grantors  by  virtue  of  such  covenants  as  run  with 
the  land.  See  case  last  cited.  But  a  quitclaim  deed  will  not  estop  the 
maker  thereof  from  afterwards  purchasing  or  acquiring  an  adverse 
title  or  interest,  and  holding  it  as  against  his  grantee,  (Simpson  v.  Gree- 
ley, 8  Kan.  586,  597,  598;  Bruce  v.  Luke,  9  Kan.  201,  207,  et  seq., 
12  Am.  Rep.  491;  Scofiins  v.  Grandstaff,  12  Kan.  469,  470;  Young 
v.  Clippinger,  14  Kan.  148,  150;  Ott  v.  Sprague,  27  Kan.  624;)  and  a 
person  who  holds  only  by  virtue  of  a  quitclaim  deed  from  his  im- 
mediate grantor,  whether  he  is  a  purchaser  or  not,  is  not  a  bona  fide 
purchaser,  (Bayer  v.  Cockerill,  3  Kan.  283,  294;  Oliver  v.  Piatt. 
3  How.  333.  410,  11  L.  Ed.  622;  May  v.  Le  Claire,  11  Wall.  217,  232. 
20  L.  Ed.  50;  Villa  v.  Rodriguez,  12  Wall.  323,  20  L.  Ed.  406;  Dick- 
erson  v.  Colgrove,  100  U.  S.  578,  584,  25  L.  Ed.  618;  Baker  v.  Hum- 
phrey, 101  U.  S.  494,  499,  25  L.  Ed.  1065;  Runyon  v.  Smith  fC.  C.) 
18  Fed.  579;  U.  S.  v.  Sliney  (C.  C.)  21  Fed.  895;  Watson  v.  Phelps, 
40  Iowa,  482;  Smith  v.  Dunton,  42  Iowa,  48:  Besore  v.  Dosh,  43 
Iowa,  211,  212;  Springer  v.  Bartle,  46  Iowa,  688;  Postel  v.  Palmer, 
71  Iowa,  157,  32  N.  W.  257;  Bragg  v.  Paulk,  42  Me.  517;  Coe  v. 
Persons  Unknown.  43  Me.  432 ;  Ridgeway  v.  HoUiday,  59  Mo.  444 ; 
Stoffel  v.  Schroeder,  62  Mo.  147;   Mann  v.  Best,  Id.  491;   Rodgers  v. 


NOTICE   BY   REGISTRATION  463 

Burchard,  34  Tex.  441,  452,  7  Am.  Rep.  283;  Harrison  v.  Boring,  44 
Tex.  255;  Thorn  v.  Newsom,  64  Tex.  161,  53  Am.  Rep.  747;  Rich- 
ardson V.  Levi,  67  Tex.  359,  3  S.  W.  444;  Smith's  Heirs  v.  Branch 
Bank  at  Mobile,  21  Ala.  125,  134;  Derrick  v.  Brown,  66  Ala.  162; 
Everest  v.  Ferris,  16  Minn.  26,  (Gil.  14;)  Marshall  v.  Roberts,  18 
Minn.  405,  (Gil.  365)  10  Am.  Rep.  201 ;  Woodfolk  v.  Blount,  3  Hayw. 
(Tenn.)  146,  9  Am.  Dec.  736 ;  Smith  v.  Winston,  2  How.  (Miss.)  601 ; 
Kerr  v.  Freeman,  33  Miss.  292,  296;  Learned  v.  Corley,  43  Miss.  688; 
Leiand  v.  Isenbeck,  1  Idaho,  469;  Baker  v.  Woodward,  12  Or.  3,  10,  6 
Pac.  174,  178;  Richards  v.  Snvder,  11  Or.  511,  6  Pac.  186;  Snow- 
den  V.  Tyler,  21  Neb.  199,  31  N.  W.  661,  668;  McAdow  v.  Black,  6 
Mont.  601,  13  Pac.  V7 ,  380,  381. 

It  may  be  that,  with  reference  to  some  equities  or  interests  in  real 
estate  the  purchaser  who  holds  only  under  a  quitclaim  deed  may  be 
deemed  to  be  a  bona  fide  purchaser ;  for  equities  and  interests  in  real 
estate  may  sometimes  be  latent,  hidden,  secret,  and  concealed,  and  not 
only  unknown  to  the  purchaser  but  undiscoverable  by  the  exercise  of 
any  ordinary  or  reasonable  degree  of  diligence.  It  is  possible,  also, 
that  a  purchaser  taking  a  quitclaim  deed  may,  under  the  registry  laws, 
be  considered  a  bona  fide  purchaser  with  reference  to  a  prior  unrecord- 
ed deed  with  respect  to  which  he  has  no  notice,  nor  any  reasonable 
means  of  obtaining  notice.  Bradbury  v.  Davis,  5  Colo.  265 ;  Butter- 
field  V.  Smith,  11  111.  485;  Brown  v.  Banner  Coal  &  Coal  Oil  Co.,  97 
111.  214,  37  Am.  Rep.  105 ;  Fox  v.  Hall,  74  Mo.  315,  41  Am.  Rep.  316; 
Graff  V.  Middleton,  43  Cal.  341 ;  Pettingill  v.  Devin,  35  Iowa,  344. 
But,  contra,  see  Thorn  v.  Newsom,  64  Tex.  161,  53  Am.  Rep.  747,  and 
note;   Postel  v.  Palmer,  71  Iowa,  157,  32  N.  W.  257. 

We  would  think  that  in  all  cases,  however,  where  a  purchaser  takes 
a  quitclaim  deed,  he  must  be  presumed  to  take  it  with  notice  of  all 
outstanding  equities  and  interests  of  which  he  could  by  the  exercise 
of  any  reasonable  diligence  obtain  notice  from  an  examination  of  all 
the  records  affecting  the  title  to  the  property,  and  from  all  inquiries 
which  he  might  make  of  persons  in  the  possession  of  the  property,  or 
or  persons  paying  taxes  thereon,  or  of  any  person  who  might,  from 
any  record,  or  from  any  knowledge  which  the  purchaser  might  have, 
seemingly  have  some  interest  in  the  property.  In  nearly  all  cases  be- 
tween individuals  where  land  is  sold  or  conveyed,  and  where  there  is 
no  doubt  about  the  title,  a  general  warranty  deed  is  given ;  and  it  is 
only  in  cases  where  there  is  a  doubt  concerning  the  title  that  only  a 
quitclaim  deed  is  given  or  received.  Hence,  when  a  party  takes  a  quit- 
claim deed,  he  knows  he  is  taking  a  doubtful  title,  and  is  put  upon  in- 
quiry as  to  the  title.  The  very  form  of  the  deed  indicates  to  him  that 
the  grantor  has  doubts  concerning  the  title ;  and  the  deed  itself  is  no- 
tice to  him  that  he  is  getting  only  a  doubtful  title.  Also,  as  a  quit- 
claim deed  can  never  of  itself  subject  the  maker  thereof  to  any  lia- 
bility, such  deeds  may  be  executed  recklessly,  and  by  persons  who  have 
no  real  claim  and  scarcelv  a  shadow  of  a  claim  to  the  lands  for  which 


464  MORTGAGES 

the  deeds  are  given ;  and  the  deeds  may  be  executed  for  a  merely  nom- 
inal consideration,  and  merely  to  enable  speculators  in  doubtful  titles 
to  harrass  and  annoy  the  real  owners  of  the  land ;  and  speculators  in 
doubtful  titles  are  always  ready  to  pay  some  trifling  or  nominal  con- 
sideration to  obtain  a  quitclaim  deed.  This  kind  of  thing  should  not 
be  encouraged.  Speculators  in  doubtful  titles  are  not  so  pre-eminently 
unselfish,  altruistic,  or  philanthropic  in  their  dealings  with  others  as  to 
be  entitled  to  any  very  high  degree  of  encouragement  from  any  source. 
There  are  cases  which  are  claimed  to  be  adverse  to  the  opinions  herein 
expressed.  They  will  be  found  cited  in  Martindale  on  Conveyancing, 
§§  59,  285,  and  notes,  and  12  Cent.  Law  J.  127. 

Not  wishing  to  decide  anything  further  in  this  case  than  is  neces- 
sary to  be  decided,  our  decision  will  be  as  follows :  A  person  who  holds 
real  estate  by  virtue  only  of  a  quitclaim  deed  from  his  immediate 
grantor,  whether  he  is  a  purchaser  or  not,  is  not  a  bona  fide  purchaser 
with  respect  to  outstanding  and  adverse  equities  and  interests  shown 
by  the  records,  or  which  are  discoverable  by  the  exercise  of  reasonable 
diligence  in  making  proper  examinations  and  inquiries. 

The  judgment  of  the  court  below  will  be  affirmed.^*  All  the  justices 
concurring. 

1*  The  following  note  is  appended  to  this  case  as  reported  in  14  Pac.  537 : 
"A  deed  which  is  but  a  nalced  release  of  the  grantor's  interest  in  property, 
though  recorded,  is  of  no  effect  as  against  a  prior  deed  of  such  interest  from 
the  same  grantor,  though  unrecorded.  Peaks  v.  Blethen,  77  Me.  510,  1  Atl. 
451  (1885).  A  quitclaim  deed  passes  no  title  as  against  the  grantor's  prior, 
though  unrecorded,  conveyance.  Postel  v.  Palmer,  71  Iowa,  157,  32  N.  W.  257 
(1887).  A  purchaser  by  such  a  deed  is  not  to  be  regarded  as  a  bona  fide  pur- 
chaser without  notice.  Dodge  v.  Briggs  (C.  C.)  27  Fed.  160  (1SS6) ;  U.  S.  v. 
Sliney  (C.  C.)  21  Fed.  894  (1884) ;  Runyon  v.  Smith  (C.  C.)  18  Fed.  579  (1883) ; 
Martin  r.  Morris.  62  Wis.  418,  22  N.  W.  525  (1885) ;  Raymond  v.  Morrison.  59 
Iowa,  371,  13  N.  W.  332  (1882)  ;  Wightman  v.  Spofford,  56  Iowa,  145,  S  N.  W. 
680  (1881)  ;  McAdow  v.  Black.  6  Mont.  601,  13  Pac.  377  (1887)  ;  Richards  v. 
Snyder,  11  Or.  501,  6  Pac.  186  (1884)  ;  Richardson  v.  Levi,  67  Tex.  359,  3  S. 
W.  444  (1887)  ;   Laurens  v,  Anderson  (Tex.)  1  S.  W.  379  (1886). 

"Where  a  quitclaim  deed  is  tendered  by  the  apparent  owner  to  one  contem- 
plating the  purchase  of  land,  it  is  a  fact  sufficient  to  awaken  the  suspicion  of 
the  latter  as  to  the  validity  of  the  title,  and  to  put  him  on  inquiry,  and  he  is 
chargeable  with  notice  of  such  defect  of  title  as  he  might  readily  have  ascer- 
tained on  inquiry.  Dodge  v.  Briggs  (C.  C.)  27  Fed.  160  (1886).  Especially 
is  tliis  so  where  the  conveyance  is  only  of  the  'right,  title,  and  interest'  of  the 
grantor.  Runyon  v.  Smith  (C.  C.)  18  Fed.  579  (1883).  Such  conveyance 
indicates  by  its  very  form  that  the  grantor  has  doubts  of  his  title,  and  the 
grantee  takes  with  notice  that  he  is  getting  a  dubious  title,  and  is  put  upon 
inquiry  as  to  the  claim  which  casts  doubts  upon  it.  Richardson  v.  Levi,  67 
Tex.  359,  3  S.  W.  444.  A  party  who  claims  title  under  a  quitclaim  deed  feom 
a  grantor  who  had  previously  conveyed  all  his  right,  title,  and  interest  in  the 
real  estate  to  another,  and  the  effect  of  the  second  deed,  if  sustained,  will  be 
to  deprive  the  first  grantee  of  his  title,  must  make  a  clear  case  of  bona  fides 
on  his  part  before  his  deed  will  be  sustained.  Hoyt  v.  Schuyler,  19  Neb.  652, 
28  N.  W.  306  (1886).  A  quitclaim  deed  of  real  estate,  while  affording  cause 
of  suspicion,  may  where  it  appears  in  a  chain  of  title  on  the  proper  records 
of  the  county,  be  sufficient  to  justify  a  bona  fide  purchaser  for  valuable  cou- 


NOTICE  BY  POSSESSION  465 


II.  Notice  by  Possession 


IB 


WOOD  V.  PRICE. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1911.    79  N.  J.  Eq.  620,  81 
Atl.  983,  38  L.  R.  A.  [N.  S.]  772,  Ann.  Cas.  1913A,  1210.) 

Appeal  from  Court  of  Chancery. 

Bill  in  equity  by  Caroline  Wood,  as  guardian,  to  foreclose  a  mort- 
gage against  Robert  A.  Price  and  others.  From  a  decree  (79  N.  J. 
Eq.  1,  81  Atl.  1093)  denying  the  petition  of  Jacob  C.  Price  to  have 
surplus  money  paid  to  him  as  purchaser  of  the  mortgaged  lands  from 
Robert  A.  Price,  in  preference  to  the  claim  of  Alice  C.  Price,  wife  of 
Robert  A.  Price,  based  upon  her  inchoate  right  of  dower,  and  also  and 
especially  upon  sequestration  proceedings  taken  by  her  in  a  suit  for 
maintenance  against  Robert  A.  Price,  the  petitioner  Jacob  C.  Price, 
appeals.    Affirmed. 

See,  also,  79  N.  J.  Eq.  14,  81  Atl.  664. 

VooRHEES,  J.^°  The  opinion  written  for  the  Court  of  Chancery 
by  the  learned  Chancellor  has  the  approval  of  this  court,  and  but  for 
the  stress  in  argument  and  in  the  briefs  filed  on  appeal  upon  points 
which  were  not  particularly  treated  in  it,  it  would  be  quite  unneces- 
sary to  add  in  any  way  to  the  careful  exposition  of  the  principles  there- 
in set  forth.    A  restatement  of  the  facts  is,  of  course,  uncalled  for. 

The  argument  is  made  that  a  suit  for  alimony  is  a  personal  action 
and  results  in  a  personal  decree  for  the  payment  of  money ;  therefore, 
to  sustain  it,  service  of  process  upon  the  defendant  within  the  territo- 
rial limits  of  the  state  is  requisite  to  give  the  courts  of  such  state  juris- 
diction to  render  such  judgment.  Elmendorf  v.  Elmendorf,  58  N.  J 
Eq.  113,  44  Atl.  164;  Hervey  v.  Hervey,  56  N.  J.  Eq.  424,  39  Atl.  762. 
It  is  also  further  contended  that  the  employment  of  the  writ  of  seques- 
tration in  order  to  compel  an  appearance,  pursuant  to  section  26  of 
the  divorce  act  (P.  L.  1907,  p.  482),  at  once  ipso  facto,  renders  the 
suit  a  proceeding  in  rem,  or  quasi  in  rem.  This  was  the  view  en- 
tertained by  the  Court  of  Chancery. 

sideration  in  relying  upon  it  as  a  valid  conveyance.  It  is  a  bona  fide  pur- 
chaser for  valuable  consideration,  and  not  a  donee  who  is  protected.  Snowden 
V.  Tyler,  21  Neb.  199,  31  N.  W.  661  (1887). 

"But  it  has  also  been  held  that  a  quitclaim  deed  is  as  effectual  to  transfer 
title  as  a  grant  or  bargain  and  sale.  Packard  v.  Johnson  (Cal.)  4  Pac.  632 
(1884),  Sheldon,  J.,  dissents ;    Stokes  v.  Riley  (111.)  9  N.  E.  69  (1886)." 

For  further  discussion  of  the  question  of  notice  in  connection  with  quit- 
claim deeds,  see  chapter  19,  p.  .516,  Biirdick,  Real  Prop.,  and  cases  there  cited. 

15  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  201. 

18  Part  of  the  opinion  is  omitted. 

Burd.Cas.Real  Prop. — 30 


466  MORTGAGES 

The  defendant,  however,  further  argues  from  this  premise  that  the 
suit,  having  thus  become  an  action  in  rem,  the  land  being  the  res  which 
is  proceeded  against,  the  suit,  from  the  time  of  issuing  the  writ  of 
sequestration,  was  thereby  transformed  into  a  "suit  relating  to  or  af- 
fecting the  possession  of  or  title  to  lands  or  real  estate,"  and  so  falls 
directly  within  the  purview  of  "An  act  respecting  notice  of  lis  pendens 
(Revision  of  1902)"  (P.  L.  1902,  p.  477),  which  act  provides  that  "nei- 
ther the  issuing  of  a  *  *  *  subpoena  or  other  process  or  writ  nor 
the  filing  of  a  *  *  *  bill  *  *  *  nor  any  proceedings  had  or  to 
be  had  thereon  *  *  *  shall  be  deemed  or  taken  to  be  constructive 
notice  to  any  bona  fide  purchaser  *  *  *  of  any  lands  or  real  estate 
to  be  aflfected  thereby  until  the  complainant  *  *  *  shall  have  first 
filed    *    *    *    a  written  notice  of  the  pendency  of  such  suit." 

Conceding^  for  argument's  sake,  the  correctness  of  the  reasoning, 
and  that  the  action,  by  the  employment  of  the  writ  of  sequestration 
and  the  filing  of  the  preliminary  petition  for  it,  has  been  transformed 
from  an  action  in  personam  into  one  in  rem,  as  distinguished  from  a 
personal  action,  commenced  by  subpcena,  but  wherein  sequestration 
had  been  resorted  to  merely  by  way  of  mesne  process,  for  some  in- 
cidental purpose,  the  fallacy  of  the  proposition  lies  in  the  misconcep- 
tion of  the  general  doctrine  of  lis  pendens,  and  of  the  distinction  exist- 
ing between  that  doctrine  and  the  doctrine  of  notice.  Our  statute, 
above  cited,  while  it  uses  the  words  hereinbefore  quoted,  as  to  "con- 
structive notice,"  yet  a  consideration  of  the  purposes  for  which  it  was 
enacted  will  demonstrate  that  it  took  origin  in  order  to  eradicate  the 
injustice  of  the  old  law. 

Although  many  judicial  deliverances,  as  well  as  text-writers,  have 
stated  that  the  doctrine  of  lis  pendens  is  referable  to  the  doctrine  of 
notice,  that  view  has  by  the  best  authority  been  denied,  and  as  stated 
by  Prof.  Pomeroy,  in  his  Equity  Jurisprudence,  §  633,  the  rule  is 
"during  the  pendency  of  an  equitable  suit,  neither  party  to  the  litiga- 
tion can  alienate  the  property  in  dispute  so  as  to  affect  the  rights  of 
his  opponent."  In  this  state,  this  view  has  been  adopted.  Vice  Chan- 
cellor Pitney,  in  Turner  v.  Houpt,  53  N.  J.  Eq.  526,  33  Atl.  28,  ex- 
amined and  collated  many  authorities  on  that  subject,  and  recognizes 
the  rule  above  set  forth,  and  continuing  refers  to  the  reason  which  led 
to  the  adoption  of  the  statutory  notice  of  lis  pendens  in  the  following 
language:  "The  manifest  hardship  of  applying  this  necessary  maxim 
in  cases  of  conveyances  in  good  faith  to  parties  without  notice  led  to  a 
statutory  provision  for  the  public  registry  of  a  notice."  While  this 
case  was  formally  overruled  (55  N.  J.  Eq.  593,  39  Atl.  1114),  yet  not 
upon  this  point,  and  the  doctrines  enunciated  by  the  learned  Vice  Chan- 
cellor have  not  been  by  it  at  all  repudiated.  McMichael  v.  Webster, 
57  N.  J.  Eq.  295,  at  page  300,  41  Atl.  714,  73  Am.  St.  Rep.  630,  sets 
forth  the  reasons  for  the  reversal.  Indeed,  this  court,  in  White  v. 
White,  61  N.  J.  Eq.  629,  47  Atl.  628,  refers  approvingly  to  the  case. 
So  that,  what  our  statute  really  did,  not  only  in  effect,  but  in  words, 


NOTICE   BY   POSSESSION  467 

for  it  is  limited  in  its  scope  to  any  bona  fide  purchaser  or  mortgagee, 
etc.,  was  to  abrogate  the  rule  that  parties  to  a  litigation  could  not 
alienate  the  property  in  dispute  as  against  the  rights  of  the  opposing 
parties  to  such  suit. 

It  made  the  recording  of  such  notice  necessary  in  order  to  preserve 
the  former  effect  of  the  litigation.  So  that  the  result  of  omitting  to  file 
and  record  the  statutory  notice  under  the  act  of  1902  left  the  parties 
free  to  deal  with  the  subject-matter  of  the  litigation  untrammeled,  and 
one  acquiring  an  interest  therein  pendente  lite  is  unaffected  by  it,  pro- 
vided his  acquisition  was  made  bona  fide  and  without  notice  of  eq- 
uities. 

It  will  thus  be  clear  that  the  statute  did  not  at  all  deal  with  the 
rights  of  persons  who  had  notice,  either  actual  or  constructive,  of 
equities  which  would  bind  or  charge  their  rights.  The  old  rules,  under 
which  the  litigation  itself  was  made  to  limit  the  rights  of  parties  ac- 
quiring interests  in  the  subject-matter  were  changed  by  the  statute 
above  cited,  unless  the  statutory  notice  was  recorded.  Having  now 
disposed  of  the  effect  of  the  lis  pendens  act,  and  shown  that  it  does 
not  apply  to  persons  who  do  not  acquire  interests  in  the  subject-matter 
bona  fide,  we  must  look  to  the  situation  of  the  parties  and  discover 
whether  there  was  notice,  either  actual  or  constructive,  to  the  purchas- 
er of  the  property. 

Jacob  C.  Price  had  purchased  the  premises  at  the  foreclosure  sale, 
on  October  8,  1908.  The  equity  of  redemption  had  been  conveyed  to 
him  by  the  mortgagor,  his  brother,  in  August  previous,  pending  the 
foreclosure  suit.  Before  that,  the  writ  of  sequestration  had  been  is- 
sued and  served.  Now  Dr.  Price  took  the  deed  without  the  signature 
of  the  wife,  whom  he  knew  to  be  entitled  to  dower,  subject  to  pay- 
ment of  the  mortgage.  He  was,  therefore,  put  upon  inquiry  as  to  the 
rights  of  the  wife,  at  least  so  far  as  her  strict  dower  interest  was  con- 
cerned. He  was  also  put  upon  inquiry  as  to  the  lien  of  the  writ  of 
sequestration,  by  reason  of  the  open,  notorious  and  exclusive  posses- 
sion of  the  tenant  of  the  property,  and  it  is  conceded  that  so  far  as 
the  tenant's  rights  were  concerned,  he  was  chargeable  with  notice  of 
whatever  rights  the  tenant  had  to  remain  in  the  property,  and  which 
the  tenant  could  enforce  against  it.  All  authorities  are  agreed  that 
the  general  rule  is  that  possession  -of  real  estate  which  is  actual,  open 
and  visible  occupation,  inconsistent  with  the  title  of  the  apparent  own- 
er by  the  record  and  not  equivocal,  occasional,  or  for  a  temporary  or 
.■special  purpose,  is  constructive  notice  to  all  the  world  of  the  rights  of 
the  party  in  possession. 

This  agreement  of  the  authorities  also  extends  to  include  those  eq- 
uities of  one  who  occupies  as  tenant  that  are  connected  with  the  ten- 
ancy, as  the  contents  of  and  the  covenants  contained  in  the  lease,  and 
as  well  to  interests  under  collateral  agreements,  as  a  contract  to  con- 
vey the  land,  or  to  renew  the  lease,  etc.     Taylor  v.  Stibbert,  2  Ves. 


468  MORTGAGES 

Jr.  437;  Daniels  v.  Davison,  16  Ves.  249;  Allen  v.  Anthony,  1  Mer, 
282;  Barnhart  v.  Greenshields,  9  Moore,  P.  C.  C.  18;  Le  Neve  v.  Le 
Neve,  2  Leading  Cases  in  Eq.  187. 

In  the  Court  of  Chancery,  Chancellor  Runyon  in  Havens  v.  Bliss,  26 
N.  J.  Eq.  363,  says:  "If  a  tenant  has  even  changed  his  character  by 
having  agreed  to  purchase  the  estate,  his  possession  amounts  to  notice 
of  his  equitable  title  as  purchaser."  Now,  it  is  the  duty  of  a  purchaser 
to  inquire  of  the  person  in  possession  of  the  premises  and  ascertain 
the  rights  under  which  he  holds,  and  if  this  duty  of  inquiry  be  dis- 
regarded, the  purchaser  is  chargeable  with  notice  of  such  facts  as  the 
inquiry,  if  it  had  been  in  fact  made,  would  have  revealed.  2  Leading 
Cases  in  Eq.  p.  188;  Holmes  v.  Stout,  10  N.  J.  Eq.  419,  426;  Havens 
V.  Bliss,  supra;  Essex  County  Nat.  Bank  v.  Harrison,  57  N.  J.  Eq. 
91,  40  Atl.  209. 

Where  the  possession  is  that  of  a  tenant,  the  authorities  are  con- 
flicting as  to  the  extent  of  the  notice  flowing  from  such  occupancy. 
The  English  rule  is  that  "the  occupation  of  land  by  a  tenant  affects  a 
purchaser  of  the  land  with  constructive  notice  of  all  that  tenant's 
rights,  but  not  with  notice  of  his  lessor's  title  or  rights."  Hunt  v. 
Luck,  1902,  1  Ch.  428,  where  the  English  cases  are  reviewed.  Under 
this  authority,  a  purchaser  is  charged  with  notice  of  those  rights  which 
a  tenant  might  enforce,  but  not  w'ith  constructive  notice  of  the  rights 
of  some  other  person  to  whom  the  tenant  pays  rent.  This  rule  in  some 
of  the  American  states  has  been  followed,  but,  Prof.  Pomeroy  in  his 
Equity  Jurisprudence  says:  "Another  and  more  numerous  group  of 
decisions  by  the  courts  of  various  states  hold  that  a  purchaser,  by 
means  of  a  lessee's  possession,  is  put  upon  inquiry  repecting  all  the 
rights  and  interests  under  which  the  tenant  holds,  and  which  affect 
the  property,  and  is  therefore  charged  with  constructive  notice  of  the 
lessor's  title  and  estate."  He  concludes  that  the  latter  rule  may  be  re- 
garded as  the  American  doctrine.  Section  625,  where  the  author  has 
collected  the  cases.  See,  also,  sections  615,  616,  618.  This  subject 
does  not  seem  to  have  been  passed  upon  by  this  court.  There  are, 
however,  in  the  Court  of  Chancery,  cases  which  approach  the  ques- 
tion. 

In  Havens  v.  Bliss,  26  N.  J.  Eq.  363,  Runyon,  Chancellor,  writing 
the  opinion  says :  "It  is  true  there  are  to  be  found  cases  in  this  coun- 
try in  which  the  notice  which  possession  gives  is  confined  to  a  known 
title  under  which  the  possessor  holds,  but  the  rule  is,  and  I  see  nothing 
to  take  this  case  out  of  its  operation,  that  the  occupancy  of  land  is 
equivalent  to  notice,  to  all  persons  dealing  with  the  title  of  the  claim 
of  the  occupant.  If  a  tenant  has  even  changed  his  character  by  having 
agreed  to  purchase  the  estate,  his  possession  amounts  to  notice  of  his 
equitable  title  as  purchaser.  2  Sugd.  on  Vend.  (11th  Am.  Ed.)  543; 
Daniels  v.  Davison,  16  Vesey,  254.  In  Baldwin  v.  Johnson,  1  N.  J. 
Eq   441,  the  language  of  Lord  Rosslyn,  in  Taylor  v.  Stibbert,  2  Ves. 


NOTICE   BY   POSSESSION  4G9 

Jr.  440,  is  quoted  with  approbation,  and  applied  to  a  case  where  a 
mortgagee  had  taken  her  mortgage  on  land,  the  legal  title  to  which 
was  in  the  mortgagor,  but  was  subject  to  a  trust  in  favor  of  another 
person,  of  which  the  mortgagee  had  no  knowledge  or  information. 
The  tenants  of  the  mortgagor  were  in  actual  possession  of  the  prop- 
erty. The  court  held  her  bound  to  inquire  of  them  as  to  the  title.  The 
language  of  Lord  Rosslyn  above  referred  to  is :  'It  was  sufficient  to 
put  the  purchaser  upon  inquiry,  that  he  was  informed  the  estate  was 
not  in  the  actual  possession  of  the  person  with  whom  he  contracted; 
that  he  could  not  transfer  the  ownership  and  possession  at  the  same 
tim.e  that  there  were  interests  as  to  the  extent  and  terms  of  which  it 
was  his  duty  to  inquire.'  "  The  same  learned  Chancellor  in  Wanner 
V.  Sisson,  29  N.  J.  Eq.  141,  denies  the  character  o'f  a  bona  fide  pur- 
chaser to  one  who  had  notice  of  the  claim  of  persons  in  possession, 
and  says:  "If  they  were  tenants  or  had  notice  of  the  claims  of  those 
under  whom  they  claim,  the  rule  is  that  the  occupancy  of  land  is 
equivalent  to  notice  to  all  persons  dealing  with  the  title  of  the  claim 
of  the  occupant.  If  a  tenant  has  even  changed  his  character  by  having 
agreed  to  purchase  the  estate,  his  possession  amounts  to  notice  of  his 
equitable  title." 

In  Essex  County  Nat.  Bank  v.  Harrison,  57  N.  J.  Eq.  91,  40  Atl. 
209,  Pitney,  V.  C,  declared  "that  the  effect  of  the  constructive  notice 
due  to  possession  is  a  notice  of  everything  which  a  party  interested  in 
the  premises  would  get  by  inquiring  of  the  party  in  possession.  In 
other  words,  the  actual  possession  of  the  premises  puts  any  person  hav- 
ing a  claim  or  seeking  to  acquire  title  thereto,  to  an  inquiry  of  such 
person  as  to  what  his  title  actually  is." 

It  seems  that  to  give  to  a  tenant's  possession,  the  effect  of  notice  of 
his  landlord's  title  is  the  more  reasonable  conclusion.  The  possession 
of  a  tenant  is  the  possession  of  the  landlord.  The  origin  and  reason 
for  the  contrary  doctrine  are  not  made  clear  in  the  English  cases,  and 
although  the  learned  judge  who  delivered  the  opinion  in  Barnhart  v. 
Greenshields,  supra,  reviews  the  cases,  not  one  of  them  referred  to  dis- 
cusses this  exact  question,  and  his  examination  of  them  concludes : 
"There  is  no  authority  in  these  cases  for  the  proposition  that  notice 
of  a  tenancy  is  notice  of  the  title  of  the  lessor;  or  that  a  purchaser 
neglecting  to  inquire  into  the  title  of  the  occupier  is  affected  by  any 
other  equities  than  those  which  such  occupier  may  insist  on.  What- 
ever authority  there  is  upon  the  subject  is  the  other  way."  Now  an 
inquiry  of  a  tenant  of  necessity  would  result  in  being  informed  of  the 
landlord  under  whom  the  tenant  occupied,  and  whose  possession  it  was 
that  the  tenant  held,  and  through  whom  the  latter  must  assert  what- 
ever right  he  claims  to  retain  the  premises.  To  limit,  therefore,  the 
effectiveness  of  the  inquiry  merely  to  the  rights  of  the  tenant,  is  to 
deprive  the  notice  of  practical  and  beneficial  usefulness  to  a  purchaser, 
a  result  which  must  have  been  originally  intended  in  the  beneficent 
design  for  his  protection,  at  the  foundation  of  the  doctrine.    As  Chief 


470  MORTGAGES 

Justice  Field  of  California  says,  in  the  well-considered  case  of  Button 
V.  Warschauer,  21  Cal.  609,  82  Am.  Dec.  765,  in  discussing  the  subject : 
"It  is  not  easy  to  give  to  the  fact  of  possession,  any  influence  as  notice, 
without  making  it  notice  of  all  such  matters  as  a  prudent  man  desirous 
of  purchasing  the  property  would  naturally  inquire  about  respecting 
the  title.  Ascertaining  that  the  possession  of  the  occupant  is  that  of  a 
tenant,  he  would,  in  the  ordinary  course  of  things,  proceed  to  inquire 
as  to  the  title  of  the  landlord." 

Dickey  v.  Lyon,  19  Iowa,  544,  contains  an  instructive  examination 
of  the  question,  and  concludes :  "It  seems  to  follow,  therefore,  that 
if  the  possession  of  a  tenant  is  notice  of  his  lease  and  its  contents, 
as  the  authorities  uniformly  concede,  it  must  necessarily  become  no- 
tice of  the  fact  that  the  landlord  claims  title  and  holds  possession  ad- 
verse to  the  proposed  purchaser's  vendor,  and,  having  notice  of  such 
fact,  he  cannot  become  a  good-faith  purchaser  of  the  estate."  Another 
case  which  deals  with  the  subject,  exhaustively  and  satisfactorily,  is 
Randall  v.  Lingwall,  43  Or.  383,  7Z  Pac.  1,  in  which  the  same  result 
is  attained.  The  text-books  generally  also  regard  this  as  the  more 
logical  and  generally  accepted  conclusion  (Wade  on  Notice  [2d  Ed.]  § 
286 ;  Fetter  on  Equity,  p.  85 ;  Eaton,  Equity,  p.  141),  and  it  is  so  held 
in  the  greater  number  of  the  states  of  the  Union.  They  have  been 
collected  in  23  Am.  &  Eng.  Ency.  of  Law,  p.  501,  and  also  in  the  notes 
to  Crooks  V.  Jenkins,  124  Iowa,  317,  100  N.  W.  82,  as  reprinted  in  104 
Am.  St.  Rep.  at  page  348.  We  conclude,  therefore,  that  the  possession 
of  premises  by  a  tenant  is  constructive  notice,  not  only  of  such  tenant's 
rights  and  equities,  but  as  well  notice  of  those  of  the  landlord. 

From  an  examination  of  the  case,  it  appears  that  Guerin,  the  tenant, 
originally  had  a  lease  made  in  February,  1904,  and  duly  recorded,  for 
a  term  of  two  years,  with  a  privilege  of  renewal  for  three  additional 
years,  and  an  option  to  purchase  at  any  time  during  the  demised  term, 
and  that  he  was  in  the  open  and  actual  possession  of  the  premises. 
The  fact  that  the  term  had  expired  at  the  time  of  the  transfer  to  Jacob 
C.  Price  takes  the  case  out  of  the  rule  that  there  is  no  obligation  to 
inquire  when  the  possession  is  not  inconsistent  with  the  record  title,  a 
question  alluded  to  in  Gardom  V.  Chester,  60  N.  J.  Eq.  238,  245,  46 
Atl.  602.  The  tenant's  occupation  was  not  then  necessarily  under  this 
lease  as  disclosed  by  the  record.  It  was,  at  the  best,  uncertain.  Be- 
sides, the  character  of  the  tenant's  occupation  had  changed,  for  he  had. 
before  the  transfer  of  title,  attorned  to  the  sheriff  under  the  writ  of 
sequestration,  and  of  such  change,  as  we  have  before  pointed  out,  the 
purchaser  had  constructive  notice.  In  executing  the  writ,  Guerin  was 
notified  by  the  sheriff'  in  writing,  dated  August  5,  1908,  to  attorn  and 
pay  to  the  sheriff  arrears  of  rents  and  rents  growing  due  for  the 
property,  so  that  the  tenant — for  he  paid  the  sheriff  afterwards  on  the 
24th  of  August,  $156.50,  as  rent — became  a  tenant  of  the  sheriff  by 
virtue  of  the  command  of  the  writ.     *     *     * 


DISCHARGE    BY   PERFORMANCE  471 


III.  Notice  by  Lis  Pendens 


ir 


See  Wood  v.  Price,  supra,  p.  465. 


(C)  Discharge  and  Foreclosure 
I.  Discharge  by  Performance  ^' 


See  Barrett  v.  Hinkley,  ante,  p.  399. 


BOGERT  V.  BLISS. 

(Court  of  Appeals  of  New  York,  1896.  148  N.  Y.  194,  42  N.  E.  582,  51 

Am.  St.  Rep.  684.) 

Appeal  from  common  pleas  of  New  York  city  and  county,  general 
term. 

Action  by  Henry  A.  Bogert,  as  trustee,  against  Elsworth  L.  Striker, 
impleaded  with  George  Bliss  and  Francis  B.  Robert,  to  foreclose  a 
mortgage.  From  a  judgment  of  the  general  term  (34  N.  Y.  Supp. 
147)  reversing  an  order  confirming  a  report  of  referees  giving  him 
the  surplus  proceeds  of  the  sale,  defendant  Robert  appeals.    Affirmcjd. 

Andrews,  C.  J.  The  controversy  relates  to  the  disposition  of  sur- 
plus moneys  arising  on  a  foreclosure  of  a  mortgage.  One  Robert 
claims  a  prior  lien  thereon  as  assignee  of  a  mortgage  made  by  the  de- 
fendant Striker  to  one  Weil,  dated  May  15,  1891,  payable  June  18, 
1891,  for  $1,000,  recorded  May  18,  1891.  The  mortgage  was  paid  at 
maturity  by  Striker,  the  mortgagor,  and  owner  of  the  equity  of  re- 
demption, to  Weil,  the  mortgagee,  who  on  the  same  day  executed  and 
delivered  to  Striker  a  satisfaction  of  the  mortgage,  together  with  the 
bond,  but  the  mortgage  was  then  in  the  register's  office,  and  for  that 
reason  was  not  delivered  to  Striker.  The  mortgage  was  paid  in  usual 
course,  and  at  the  time  of  the  payment  there  was,  so  far  as  appears,  no 
intention  on  the  part  of  Striker,  and  no  understanding  between  him 
and  the  mortgagee,  that  the  mortgage  should  be  kept  alive.  Subse 
quently,  on  July  2,  1891,  Striker  applied  to  Robert  (a  partner  of  Weil) 
for  a  loan  of  $1,000,  on  the  security  of  this  extinguished  mortgage, 
and  the  loan  was  made.  Striker  delivering  to  Robert  at  the  time  the 
bond  and  the  satisfaction,  and  stating  that  Weil  would  assign  the 
mortgage  to  him.     The  assignment  was  subsequently  made,  but  not 

IT  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  202. 

18  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  203,  204. 


472  MORTGAGES 

as  we  infer,  until  after  the  mortgage  executed  to  Bliss,  the  other  claim- 
ant of  the  surplus.  The  Bliss  mortgage  was  executed  by  Striker  to 
Bliss  August  28,  1891,  and  covered  the  same  premises  embraced  in  the 
Weil  mortgage,  and  \vas  given  to  secure  a  loan  of  $1,500  made  by 
Bliss  to  Striker,  but  in  form  was  an  absolute  deed,  and  was  recorded 
November  11,  1891.  Bliss,  when  he  took  his  mortgage,  made  no 
search  of  the  title,  and  had  constructive  notice  only  of  the  Weil  mort- 
gage. The  question  is  whether  Robert  or  Bliss  is  entitled  to  the  sur- 
plus moneys.  We  think  the  conclusion  of  the  general  term  that  Bliss 
is  entitled  to  them  is  correct. 

The  Weil  mortgage  was  extinguished  by  payment  before  Striker 
applied  to  Robert  for  a  loan,  and  Robert  had  notice  that  the  mort- 
gage had  been  paid  by  Striker.  Striker  delivered  to  him  the  satisfac- 
tion executed  by  Weil,  and  there  is  no  pretense  that  it  did  not  repre- 
sent the  actual  fact  that  Striker  had  paid  the  mortgage.  What  Striker 
undertook  to  do  w^as  to  reissue  the  mortgage  and  the  bond  to  secure 
another  loan  equal  to  the  amount  of  the  mortgage.  Robert  assented 
to  this  proposition,  and  made  the  loan  on  the  faith  of  the  proposed 
security.  But  there  was  no  writing,  and  no  actual  assignment  of  the 
mortgage,  until  after  Bliss  had  taken  his  mortgage.  All  that  Robert 
had  until  the  assignment  was  made  was  the  possession  of  the  bond 
and  the  satisfaction  of  the  mortgage,  and  the  verbal  agreement  of 
Striker  that  the  mortgage  should  be  assigned.  In  this  state  a  mortgage 
is  a  lien  simply,  and  the  general  principle  is  well  settled  that  on  pay- 
ment the  lien  is  ipso  facto  discharged,  and  the  mortgage  extinguished. 
There  are  many  cases  where,  for  purposes  connected  with  the  protec- 
tion of  the  title  or  the  enforcement  of  equities,  what  is  in  form  a  pay- 
ment of  a  mortgage  will  be  treated  as  a  purchase,  so  as  to  preserve 
rights  which  might  be  jeoparded  if  the  transaction  was  treated  as  a 
payment.  But  we  know  of  no  principle  which  permits  a  mortgagor 
who  has  paid  his  mortgage  and  taken  a  satisfaction,  there  being  at  the 
time  no  equitable  reason  for  keeping  it  afoot,  subsequently  to  resusci- 
tate and  reissue  it  as  security  for  a  new  loan  or  transaction,  and 
especially  where  the  rights  of  third  parties  are  in  question.  It  would 
make  no  difference,  in  our  view,  whether  the  reissue  of  the  mortgage 
was  before  or  after  new  rights  and  interests  had  intervened.  We  do 
not  speak  of  the  position  of  a  subsequent  grantee  or  mortgagee  having 
actual  notice  of  the  reissue  of  a  satisfied  mortgage  before  he  takes 
his  mortgage  or  deed.  It  is  possible  that  the  circumstances  of  the  re- 
issue may  be  such  as  to  furnish  ground  for  a  court  of  equity  to  inter- 
vene and  compel  the  execution  of  a  new  mortgage,  to  accomplish  the 
real  purpose  of  the  parties,  and  notice  of  such  circumstances  to  the 
subsequent  grantee  or  mortgagee  might,  perhaps,  under  special  condi- 
tions, subject  his  right  to  the  prior  equity.  But  the  contention  that 
a  person,  having  at  the  time  notice  that  a  mortgage  had  been  paid  by 
the  mortgagor  in  usual  course,  can,  by  a  verbal  arrangement  between 
himself  and  the  morlgagor,  give  the  extinct  mortgage  vitality  again 


DISCHARGE    BY   PEKFOEMANCE  473 

as  security  for  a  new  loan,  so  as  to  give  it  priority  over  a  subsequent 
conveyance  or  mortgage,  is  not  justified  by  the  authorities  in  this 
state. 

The  statute  of  frauds  does  not  permit  mortgages  on  land  to  be  cre- 
ated without  writing.  The  reissue  of  a  dead  mortgage,  if  effect  is 
given  to  the  transaction,  is  in  substance  the  creation  of  a  new  mort- 
gage. If  this  was  permitted,  it  would  furnish  an  easy  way  to  evade 
the  statute.  The  law  wisely  requires  that  instruments  by  which  land 
is  conveyed  or  mortgaged  should  be  executed  with  solemn  forms,  and 
that  their  existence  should  be  made  known  through  a  system  of  reg- 
istry, so  as  to  protect  those  subsequently  dealing  with  the  premises. 
Public  policy  requires  that  dealings  with  land  should  be  certain,  and 
that  transactions  affecting  the  title  should  be  open,  and  that  secret 
agreements  should  not  be  permitted  by  which  third  persons  may  be 
misled  or  deceived.  It  would  be  a  convenient  cloak  for  fraud  if  a 
mortgagor,  having  paid  a  mortgage,  could  retain  it  in  his  possession 
uncanceled  of, record,  and  reissue  it  at  pleasure.  A  party  taking 
from  a  mortgagor  a  reissued  mortgage  has  notice  which  should  put 
him  upon  inquiry,  and  he  takes  at  the  peril  that  it  has  in  fact  been 
paid.  In  the  present  case,  not  only  had  the  mortgage  been  paid  before 
Robert  made  his  loan,  but  he  knew  the  fact  from  incontestable  evi- 
dence. If  he  had  received  an  actual  assignment  before  Bliss  had  taken 
his  mortgage,  he  would  not,  we  think,  have  been  entitled  to  preference. 
Upon  the  facts  actually  existing  he  had  merely  an  agreement  for  an 
assignment,  which  at  most  created  an  equity  enforceable  by  equitable 
action ;  and  meanwhile  Bliss  had  obtained  a  legal  mortgage,  having  no 
notice  of  the  agreement.  Bliss  had  constructive  notice  of  the  mort- 
gage to  Weil.  His  mortgage  was  subject  to  that  incumbrance,  unless 
the  mortgage  had  been  paid.  But  he  did  not  take  subject  to  an  ar- 
rangement between  Striker  and  Robert  to  revive  the  mortgage,  the  lien 
of  which  had  been  extinguished  by  payment.  The  case  of  Mead  v. 
York,  6  N.  Y.  449,  57  Am.  Dec.  467,  is  a  direct  authority  upon  the 
question  here  presented.  It  was  there  held  that  a  mortgage,  after 
being  once  paid  by  the  mortgagor,  cannot  be  kept  alive  by  a  parol 
agreement  as  security  for  a  new  liability  incurred  for  the  mortgagor 
as  against  the  latter's  subsequent  judgment  creditors.  See,  also,  Cam- 
eron V.  Irwin,  5  Hill,  272 ;  Jones,  Mortg.  §  943,  and  cases  cited. 

The  appellant  refers  to  two  cases  upon  which  he  particularly  relies, — 
Kellogg  V.  Ames,  41  N.  Y.  259,  and  Coles  v.  Appleby,  87  N.  Y.  114. 
Kellogg  V.  Ames  was  an  action-  to  foreclose  a  mortgage  which  the 
plaintiff,  before  maturity,  purchased  from  one  Douglass,  who  held  a'n 
assignment  thereof  from  the  mortgagees,  regular  in  form,  the  plaintiff 
paying  therefor  the  full  amount  thereof.  Douglass  was  not  a  party  to 
the  instrument,  and  he  represented  to  the  plaintiff,  at  the  time  of  the 
purchase  by  the  latter,  that  the  mortgage  was  a  valid  and  subsisting 
security,  and  the  plaintiff  purchased  in  reliance  thereon,  and  took  an 
assignment  from  Douglass,  which  Iiq  placed  on  record.    Douglass  sub- 


i74  MORTGAGES 

sequently  conveyed  the  premises  to  the  defendant  Ames.  It  appeared 
that  Douglass,  after  the  mortgage  was  executed,  had  taken  a  convey- 
ance of  the  equity  of  redemption  in  the  land  from  the  mortgagors,  sub- 
ject to  the  mortgage  which  in  the  deed  to  him  he  covenanted  to  pay. 
It  also  appeared  that  he  thereafter,  and  before  the  assignment  to  the 
plaintiff,  had  delivered  to  the  mortgagees,  from  time  to  time,  hard- 
ware, which  by  agreement  they  accepted  in  full  payment  of  the  mort- 
gage. The  case  came  up  on  findings  of  fact  and  law,  and  the  court 
decided  the  case  on  the  findings  alone.  There  was  no  finding  that 
when  the  plaintiff  purchased  the  mortgage  he  knew  of  the  payment. 
or  that  Douglass  owned  the  land,  or  had  bound  himself  to  pay  the 
mortgage.  It  was  found  that  when  the  mortgage  was  paid  it  was  the 
intention  that  the  mortgage  should  be  kept  alive.  In  pursuance  of  this 
intention  the  mortgagees  assigned  and  delivered  the  mortgage  to 
Douglass.  The  majority  of  the  court  held  that  the  plaintiff  could  en- 
force the  mortgage,  but  two  of  the  six  judges  who  concurred  in  the 
opinion  stated  that,  if  it  had  been  found  that  the  plaintiff,  when  he 
look  the  assignment,  had  notice  of  the  payment  by  Douglass,  and  of 
his  relation  to  the  land,  they  would  have  been  of  opinion  that  the  plain- 
tiff could  not  recover.  So  far  as  appears,  all  the  judges  who  con- 
curred in  the  judgment  may  have  held  the  same  view.  It  was  held 
that  the  principle  of  estoppel  applied  upon  the  facts  found. 

This  case  furnishes  no  precedent  for  the  claim  made  in  the  present 
case.  It  will  be  observed  that  in  that  case  the  mortgage  was  assigned 
to  the  plaintiff  before  it  became  due  according  to  its  terms;  that  it 
was  apparently  a  valid  security  in  the  hands  of  Douglass ;  that  the  pay- 
ments thereon  were  not  made  by  the  mortgagor,  but  by  Douglass,  with 
the  intention  and  understanding  at  the  time  that  it  was  to  be  kept  alive, 
and  not  satisfied ;  that  the  plaintiff  took  the  assignment  in  good  faith 
and  without  notice,  and  placed  his  assignment  on  record  before  the 
conveyance  by  Douglass  to  Ames.  In  the  present  case  the  dealing  was 
between  Striker,  the  mortgagor  and  owner  of  the  premises,  and  Rob- 
ert, in  respect  to  a  past  due  mortgage  which  Robert  knew  had  been 
paid.  Robert  doubtless  supposed  it  could  be  reissued  by  Striker,  and 
made  his  loan  in  reliance  on  Striker's  consent  that  Weil  should  assign 
the  satisfied  mortgage  to  him  as  security  for  the  loan.  It  was  not,  in 
fact,  assigned  until  after  Bliss  had  taken  his  mortgage. 

In  Coles  V.  Appleby  the  plaintiff  claimed  as  assignee  of  a  mort- 
gage made  by  Benham,  which  one  Beach  procured  to  be  assigned  by 
the  mortgagee  to  the  plaintiff.  Beach  had  purchased  th?  equity  of  re- 
demption in  the  land,  and  bound  himself  to  pay  the  mortgage.  He  sub- 
sequently paid  the  amount  to  the  mortgagee,  but  under  the  arrange- 
ment that  the  mortgage  was  not  to  be  satisfied,  but  that  it  should  be 
assigned.  The  court  sustained  the  right  of  the  plaintiff  to  enforce 
the  mortgage,  saying:  "The  right  of  the  plaintiff  to  enforce  the  bond 
and  mortgage  does  not  rest  upon  a  parol  agreement  to  restore  the 
mortgage,  but  upon  the  intention  at  the  time  to  preserve  it  as  a  lien, 


EFFECT  or  TENDER  OF  PAYMENT  475 

shown  by  the  assignment  thereof,  and  the  circumstances  attending  the 
transaction." 

We  find  no  case  which  sustains  the  claim  that  a  mortgage  paid  by 
the  mortgagor,  not  intended  to  be  kept  alive  at  the  time  of  the  pay- 
ment, can  be  thereafter  reissued  by  him  to  secure  another  loan,  made 
by  a  party  cognizant  of  the  fact,  so  as  to  give  it  validity  as  against  a 
subsequent  purchaser  or  mortgagee.  The  order  of  the  general  term 
should  be  alarmed.  AH  concur  except  Vann^  J,,  not  sitting.  Order 
affirmed.^" 


II.  Effect  of  Tender  of  Payment 


20 


PARKER  V.  BEASLEY. 

(Supreme  Court  of  North  Carolina,  1895.     116  N.  C.  1,  21  S.  E.  Or>5,  3.3 

L.  R.  A.  231.) 

Appeal  from  superior  court,  Hertford  county;   Armfield,  Judge. 

Action  by  A.  D.  Parker  against  J.  N.  Beasley  and  wife.  From  a 
judgment  for  plaintiff,  defendants  appeal.     Affirmed. 

The  defendants,  J.  N.  Beasley  and  wife,  Mary  A.  Beasley,  bor- 
rowed money,  and  gave  their  promissory  note  for  the  same,  payable  to 
R.  E.  Beale,  on  January  1,  1890,  and  executed  a  mortgage,  duly  pro- 
bated and  recorded,  on  a  certain  tract  of  land  belonging  to  said  Mary, 
to  said  R.  E.  Beale,  to  secure  the  payment  of  their  said  note,  with  the 
usual  power  of  sale  in  case  of  default  in  such  payment;  and  on  the 
14th  of  April,  1891,  said  Beale  assigned  the  note  to  the  plaintiff.  On 
the  28th  of  October,  1891,  Beale,  the  mortgagee,  offered  said  land  for 
sale  under  the  power  and  according  to  the  provisions  of  said  mortgage, 
when  the  plaintiff  bid  it  off,  and  offered  to  pay  by  surrendering  his 
note  and  mortgage.  The  mortgagee  declined  to  make  a  deed,  and  the 
defendants  did  not  pay  the  money.  The  defendants,  on  the  27th  of 
October,  1891,  or  on  the  day  of  said  sale,  tendered  to  the  plaintift"s 
authorized  attorney  the  amount  of  principal,  interest,  and  cost  then 
due,  which  was  refused  by  said  attorney.  It  was  found  by  the  jury 
that  there  was  no  sale  under  the  power  in  said  mortgage,  and  that 
the  tender  was  made  as  stated. 

On  the  30th  of  September,  1892,  the  plaintiff  instituted  this  action 
(1)  for  possession  of  the  land;   (2)  for  judgment  against  defendants 

19  See,  also,  Lindsay  v.  Garvin,  31  S.  C.  259,  9  S.  E.  862,  5  L.  R.  A.  219 
(1SS9).  A  discharge  in  bankruptcy  does  not  affect  the  mortgage  lien,  al- 
though it  may  release  the  personal  liability  of  the  mortgagor.  Burtis  v.  Wait, 
r>3  Kan.  478,  6  Pac.  783  (1885).  Foreclosure  is  not  payment,  and  does  not 
discharge  the  mortgage  debt,  although  the  parties  may  agree  that  it  shall  con- 
stitute a  discharge.  Shepherd  v.  May,  115  U.  S.  505,  6  Sup.  Ct.  119,  29  L.  Ed. 
456  (1885). 

20  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  205. 


476  MORTGAGES 

for  the  amount  of  said  note,  "to  be  discharged  upon  the  surrender  of 
the  said  land  or  the  sale  thereof  under  an  order  of  the  court,  and  for 
costs  and  any  other  necessary  relief."  The  defendants  filed  an  an- 
swer, averring,  among  other  things,  that  on  the  said  27th  of  October, 
1891,  the  defendants  legally  tendered  the  amount  then  due  the  plain- 
tiff to  his  attorney,  which  was  refused.  The  defendants  prayed: 
First,  that  plaintiff  recover  judgment  only  against  the  defendant  J.  N. 
Beasley,  and  for  the  amount  due  on  October  27,  1891,  the  date  of  said 
tender ;  second,  that  said  land  be  discharged  from  any  hability  for  the 
payment  of  said  note,  and  that  said  mortgage  be  declared  satisfied. 
At  the  trial  the  plaintiff  had  judgment  for  the  amount  of  his  note,  with 
interest  and  costs  which  were  due  on  the  said  day  of  tender,  and  de- 
claring said  judgment  to  be  a  lien  upon  said  mortgaged  land,  with  an 
order  that  after  90  days  the  said  land  be  sold  to  satisfy  said  judg- 
ment, and  to  pay  over  any  balance  to  defendants.  To  this  judgment 
the  defendants  excepted,  "because  the  court  declined  to  hold  that  the 
tender  discharged  the  lien  of  the  mortgage  on  the  land,"  and  ap- 
pealed. 

Faircloth,  C.  J,  A.  makes  a  promissory  note  to  B.  for  borrowed 
money  payable  on  a  day  certain,  and,  to  secure  it,  he  and  his  wife 
give  B.  a  mortgage  on  land,  duly  registered,  and  the  money  is  used  in 
improving  the  mortgaged  premises.  After  maturity  of  the  debt,  and 
before  any  sale  or  foreclosure  proceedings  begun,  the  mortgagor  ten- 
ders to  the  mortgagee  the  amount  then  due,  principal,  interest,  and 
costs  then  incurred,  and  the  mortgagee  refuses  to  accept  the  tender 
and  surrender  his  note  and  mortgage.  Does  this  tender  discharge  the 
lien  on  the  mortgaged  land?  The  above  statement  discloses  the  only 
v^uestion  presented  in  the  record  in  the  present  action.  It  does  not  ap- 
pear that  the  money  tendered  was  deposited  anywhere,  nor  that  it  was 
kept  ready  for  the  plaintiff  in  case  of  demand,  nor  that  it  was  ten- 
dered at  the  trial.  The  plaintiff  instituted  this  action  for  possession  of 
the  land,  and  to  recover  a  judgment  on  the  note,  and  for  a  decree 
condemning  and  ordering  said  land  to  be  sold  to  satisfy  his  judgment. 
The  defendants  pleaded  their  tender,  among  other  things,  and  relied  on 
it  as  a  discharge  of  the  mortgage  lien.  At  the  trial  the  plaintiff  had 
judgment  for  the  principal  money  and  interest  and  cost  prior  to  the 
day  of  tender,  and  also  an  order  to  sell  the  land  to  satisfy  the  judg- 
ment. The  defendant  Beasley  excepted,  "because  the  court  declined 
to  hold  that  the  tender  discharged  the  lien  of  the  mortgage  on  the 
land,"  and  appealed.  The  effect  of  a  legal  tender  in  case  the  security 
had  been  wholly  personal  is  not  presented,  and  we  express  no  opinion 
on  that  question ;  nor  is  the  effect  of  a  tender  made  before  or  at  ma- 
turity (called  the  "law  day"  in  case  of  a  mortgage  security)  presented. 

We  are  not  aware  that  the  question  now  before  us  has  ever  been 
directly  presented  to  this  court.  In  some  of  our  sister  states,  either 
by  statute  or  judicial  ruling,  the  mortgage  lien  is  held  to  be  only  a  mere 
security  or  pledge,  with  the  title  remaining  in  the  mortgagor,  and  that 


EFFECT  OF  TENDER  OF  PAYMENT  477 

a  tender  kept  intact  discharges  the  lien,  and  in  some  that  the  debt  is 
discharged  because  the  condition  of  the  mortgage  contract  is  perform- 
ed, and  that  the  title  of  the  mortgagor  is  complete  without  reconvey- 
ance or  other  equivalent  act.  This  is  the  result  of  the  harsh  rule  of  the 
common  law.  But  in  those  states,  if  the  mortgagor  should  call  on  the 
court  of  chancery  to  remove  the  cloud  on  his  title,  or  to  work  out  any 
other  object,  he  is  required  to  pay  the  debt,  on  the  principle  that  he 
must  do  equity  if  he  asks  for  it.  In  the  state  of  New  York,  after 
several  cases  much  considered,  it  was  finally  settled  by  a  divided  court 
in  Kortright  v.  Cady,  21  N.  Y.  343,  78  Am.  Dec.  145,  that  a  tender, 
although  not  kept  good,  made  after  the  law  day,  at  any  time  before 
foreclosure,  discharges  the  lien.  In  a  few  other  states  the  same  doc- 
trine prevails,  but  they  all  rest  on  the  holding  that  the  mortgage  is  a 
mere  security  or  pledge,  without  any  legal  title  in  the  mortgagee.  The 
several  decisions  in  such  states  present  various  phases  of  the  question. 
In  New  York,  in  Tuthill  v.  Morris,  81  N.  Y.  99,  which  was  an  action  to 
restrain  a  sale  and  to  have  the  mortgage  canceled  of  record,  on  the 
ground  that  the  amount  of  the  mortgage  had  been  duly  tendered  and 
refused,  the  court  say :  "A  party  coming  into  equity  for  affirmative 
relief  must  himself  do  equity,  and  this  would  require  that  he  pay  the 
debt  secured  by  the  mortgage  and  the  costs  and  interest,  at  least  up  to 
the  time  of  the  tender.  The  most  that  could  be  equitably  claimed 
would  be  to  relieve  the  debtor  from  the  payment  of  interest  and  cost 
subsequently  accruing,  and,  to  entitle  him  to  this  relief,  he  should  have 
kept  his  tender  good  from  the  time  it  was  made."  And  there  are 
many  similar  decisions  in  those  states. 

But  it  is  claimed  that  the  present  action  is  not  one  for  equitable  re- 
lief. We  think  this  is  a  misapprehension.  It  is  true  that  it  is  an  action 
for  possession,  for  judgment  for  the  amount  of  the  debt,  "to  be  dis- 
charged upon  the  surrender  of  the  said  land,  or  the  sale  thereof  un- 
der an  order  of  the  court,  and  for  costs  and  any  other  necessary  re- 
lief" ;  and  the  defendants,  after  pleading  tender  and  refusal,  pray  the 
court  "that  said  land  be  discharged  from  any  liability  for  the  payment 
of  said  note,  and  that  said  mortgage  be  declared  satisfied."  Here  both 
parties  are  asking  the  court  to  do  things  which  a  court  of  law  could 
not  do.  Before  the  constitution  of  1868,  neither  party  could  get  any 
equitable  relief  except  by  a  bill  in  equity,  but  under  that  constitution 
and  the  Code  either  party  can  assert  and  obtain  his  equitable  relief 
in  any  action  at  law  by  the  other  party,  thus  expediting  business  and 
saving  costs ;  and  the  moment  either  party,  by  his  pleadings,  sets  out 
and  asks  equitable  relief,  the  court  of  equity  acquires  jurisdiction, 
clears  the  debt,  and  adjusts  all  equities  between  the  parties;  and  this 
view  clearly  embraces  the  present  case.  In  a  much  larger  number  of 
the  states  we  think  the  rule  is  different  from  that  in  New  York.  In 
North  Carolina  the  mortgagee  has  the  legal  estate,  and  the  mortgagor  is 
the  equitable  owner.  Until  the  day  of  redemption  is  past,  he  may  pay 
the  money  according  to  the  proviso  in  the  contract,  and  avoid  the  con- 


4 78  MORTGAGES 

veyance  at  law,  and  this  is  termed  his  legal  right  of  redemption.  After 
the  day  of  redemption  is  past,  he  has  still  an  equity  of  redemption, 
which  is  a  continuance  of  his  old  estate.  Hemphill  v.  Ross,  66  N.  C. 
477;  Coleb.  Coll.  Secur,  §  157,  says  there  are  few  states  where  the 
mortgage  is  regarded  as  merely  subsidiary  to  the  debt,  an  incident  to 
the  principal,  the  shadow  which  follows  and  depends  upon  the  sub- 
stance. "This  is  not  the  view  taken  in  this  state  of  these  relations,  nor 
is  it  in  harmony  with  the  general  course  of  adjudications  elsewhere. 
The  note  is  the  personal  obligation  of  the  debtor.  The  mortgage  is  a 
direct  appropriation  of  property  to  its  security  and  payment."  Cape- 
hart  V,  Dettrick,  91  N.  C.  344,  353.  The  mortgagee  may  at  any  time 
take  or  recover  possession  of  the  mortgaged  land,  unless  expressly  for- 
bidden by  the  terms  of  the  deed  or  by  necessary  implication.  1  Jones, 
^lortg.  §  58. 

With  this  view  of  the  mortgagee's  estate  and  its  incidents,  what  is 
the  effect  of  the  tender  relied  on  in  this  case?  Does  it  discharge  the 
lien  ?  The  burden  of  showing  tender  and  refusal  is  on  the  party  plead- 
ing it.  The  defendants  can  derive  no  benefit  from  their  plea  of  a 
tender,  because  it  is  not  accompanied  by  a  payment  into  court  of  the 
amount  admitted  to  be  due.  State  v.  Briggs,  65  N.  C.  159.  We  have 
also  omitted  to  notice  that  a  plea  of  tender  is  incomplete  unless  ac- 
companied by  a  payment  of  the  sum  tendered  into  court.  Terrell  v. 
Walker,  Id.  91.  It  was  insisted  that  in  the  opinion  of  Pearson,  C.  J., 
in  Capeheart  v.  Biggs,  77  N.  C.  264,  by  the  expression,  "The  plaintiff 
might  invalidate  a  sale  made  under  the  power  by  proof  that  before  the 
sale,  or  even  on  the  day  of  sale,  he  tendered  the  balance  due  with  the 
expenses  incurred,"  we  must  assume  that  he  meant  a  tender  kept  good 
by  payment  into  court,  especially,  as  in  Cope  v.  Bryson,  1  Winst.  112. 
he  had  already  said  that  defendant  must  plead  "tender  and  refusal  and 
'always  ready,'  and  pay  the  money  into  court,  and  take  a  rule  on  the 
plaintiff  to  take  it  or  proceed  further  at  his  peril."  In  Shields  v. 
Lozear,  34  N.  J.  Law,  496,  3  Am.  St.  Rep.  256,  it  is  held :  "But  an 
unaccepted  tender  of  the  mortgage  money,  made  after  the  day  pre- 
scribed in  the  mortgage,  will  not  affect  the  lien  of  the  mortgage  on  the 
land.  It  is  neither  performance  of  the  condition  nor  payment  or  sat- 
isfaction of  the  debt.  Its  only  effect  will  be  to  stop  the  running  of  in- 
terest, and  to  subject  the  mortgagee  to  the  costs  of  a  redemption  bv 
bill  in  equity."  In  Bissell  v.  Heyward,  96  U.  S.  580,  24  L.  Ed.  678, 
it  is  stated  that,  "to  have  the  effect  of  stopping  interest  or  costs,  a 
tender  must  be  kept  good ;  and  it  ceases  to  have  that  effect  when  the 
money  is  used  by  the  debtor  for  other  purposes."  A  plea  of  tender  not 
accompanied  by  profert  in  curia  is  bad.  Soper  v.  Jones,  56  Md.  503. 
A  tender  after  default  does  not  discharge  the  lien  of  a  mortgage,  al- 
though sufficient  in  amount.  When  a  tender  is  made  after  the  day, 
it  should  be  kept  good.  Crain  v.  McGoon  (111.)  18  Am.  Law  Reg.  178; 
Merritt  v.  Lambert,  7  Paige,  (N.  Y.)  344;  Maynard  v.  Hunt,  5  Pick, 
(Mass.)  240 ;  Matthews  v.  Lindsay,  20  Fla.  973.    A  tender,  to  prevent 


EFFECT  OF  TENDER  OF  PAYMENT  479 

the  running  of  interest,  must  be  continuing.  Using  the  money  after 
refusal  by  the  creditor  to  receive  it  destroys  this  attribute  of  a  legal 
tender.  Gray  v.  Angier,  62  Ga.  596,  In  tender,  where  the  money  is 
brought  into  court,  and  deposited  and  left  with  the  plaintiff,  he  is  en- 
titled to  cost  only.  Shiver  v.  Johnston,  62  Ala.  Z7 .  A  tender  of  pay- 
ment, to  be  effectual,  must  be  kept  good,  and  be  ready  at  any  time.  To 
get  the  benefit  of  a  tender,  the  money  must  be  placed  in  the  custody 
of  the  court,  so  that  it  may  be  awarded  to  the  party  to  whom  it  right- 
fully belongs.  Frank  v.  Pickens,  69  Ala.  369.  The  general  rule  is 
that  in  a  plea  of  tender  it  must  be  accompanied  with  an  averment  that 
the  defendant  was  and  still  is  ready  to  pay  it,  and  that  the  money  is 
produced  in  court.  2  Greenl.  Ev.  pt.  4,  589.  The  payment  of  money 
into  court  is  an  admission  of  indebtedness  to  the  amount  paid  in,  and, 
whatever  may  be  the  result  of  the  trial,  the  money  belongs  to  the 
plaintiff,  and  the  party  paying  it  in  loses  all  right  to  it.  25  Am,  & 
Eng.  Enc.  Law,  943.  It  is  seldom  that  a  case  of  absolute  refusal  after 
tender  is  made  out,  for  it  is  generally  attended  with  circumstances 
that  explain  the  refusal. 

Upon  the  weight  of  current  authorities,  and  upon  general  reasoning 
and  a  due  regard  for  fair  dealing,  we  are  of  opinion  that  the  defend- 
ants' plea  of  tender  was  not  available,  except  to  stop  interest  and  save 
them  costs  after  the  tender,  which  was  accorded  to  them  at  the  trial. 
To  decide  otherwise  might  be  to  let  the  defendants  keep  their  money, 
discharge  the  security,  and  the  plaintiff  get  nothing  from  any  quarter. 
This  would  be  monstrous.  The  law  contemplates  the  payment  of  just 
debts.     We  see  no  error  in  the  judgment  below.     Affirmed. 

Clark,  J.  (dissenting).  The  defendants,  whose  land  was  advertised 
for  sale  under  a  mortgage,  tendered  the  creditor's  attorney  "all  that 
was  due  and  all  costs."  The  attorney  refused  to  take  this,  unless  the 
mortgagor  would  in  addition  pay  his  fee.  This  not  being  done,  he 
sold  the  land;  the  plaintiff  bought,  and  brings  this  action  for  ejectment. 
The  question  presented  is  whether  this  tender  discharged  the  lien,  not 
the  debt ;  for,  if  it  did  not  discharge  the  mortgage,  a  purchaser  at  a 
sale  thus  made  under  it  would  acquire  a  good  title,  and  mortgagors 
in  such  cases  would  be  at  the  mercy  of  the  exactions  of  the  creditor 
or  his  counsel.  This  not  only  would  subject  mortgagors  to  a  liability 
to  be  thus  squeezed  rather  than  bear  the  annoyance  and  additional  cost 
of  a  sale  under  the  mortgage  with  payment  of  the  commission  to  the 
trustee  for  selling, — of  itself  often  a  considerable  burden, — but  fre- 
quently the  exaction  would  be  submitted  to,  rather  than  lose  the  op- 
portunity of  a  private  sale  to  a  party  who  might  buy  the  land  if  dis- 
incumbered.  If  a  tender  by  the  mortgagor  of  the  full  amount  due 
will  not  discharge  the  Hen,  but  the  acceptance  thereof  by  the  mort- 
gagee is  necessary  to  have  that  effect,  then  the  mortgagee,  by  declining 
to  receive  the  payment,  can  (as  in  this  case)  add  to  the  lien,  by  his 
own  wrongful  act,  the  costs  of  the  sale  and  the  commission  for  selling, 
unless  he  is  minded  to  waive  an  actual  sale  by  receiving  payment  of 


4S0  MORTGAGES 

the  sum  the  commissions  would  amount  to  in  addition  to  the  sum  just- 
ly due.  As  the  parties  can  stipulate  for  the  rate  of  commission  for 
selling,  this  would  simlpy  repeal  the  usury  law,  and  give  the  mortgagee 
a  safe  and  sure  mode  of  collecting  his  illegal  rate  of  interest. 

It  is  true  that  in  the  present  case  the  purchaser  at  the  sale  was  the 
holder  of  the  mortgage,  and,  recognizing  that  he  could  not  recover 
in  ejectment  under  a  purchase  at  a  sale  made  under  these  circumstanc- 
es, he  changed  front  on  the  trial,  and  asked  for  a  decree  of  foreclosure, 
instead  of  a  judgment  for  possession.  But  the  principle  involved  is 
the  same,  and  the  single  question  presented  is  whether  a  tender  of  the 
full  amount  due  on  the  mortgage,  with  all  costs,  is  a  discharge  of  the 
lien.  The  hardship  which  would  result  from  holding  that  it  would 
not  is  such  as  must  be  apparent  to  a  court  of  equity  which  looks  to 
all  possibilities  of  oppression.  There  are  no  direct  precedents  in  this 
state,  but  the  overwhelming  weight  of  authority  elsewhere  is  that  such 
tender  in  full  would  discharge  the  lien,  leaving,  of  course,  the  debt  still 
valid.  The  carefully  written  American  &  English  Encyclopedia,  which 
puts  into  its  text  the  prevailing  and  better  doctrine,  citing  the  minority 
decisions  in  the  note,  thus  states  the  generally  accepted  doctrine :  "A 
tender  of  the  full  amount  of  a  debt  secured  by  a  mortgage  or  pledge 
discharges  the  lien  of  the  mortgage  or  pledge.  According  to  the  cur- 
rent of  authority,  the  lien  is  extinguished,  though  tender  is  not  made 
until  after  default.  It  is  not  necessary,  in  order  to  effect  a  release, 
that  the  tender  should  be  kept  good  or  that  the  money  should  be  paid 
into  court."  25  Am.  &  Eng.  Enc.  Law,  927,  929.  This  is  sustained 
in  the  notes  by  citation  of  a  great  number  of  authorities,  especially 
from  courts  of  such  standing  as  those  of  New  York,  Michigan,  Wis- 
consin, Massachusetts,  and  others,  citing  also  the  very  few  decisions 
to  the  contrary.  To  the  same  purport  is  section  893,  1  Jones,  Mortg. 
(5th  Ed.),  which  says,  citing  authorities :  "The  rule  in  several  states 
is  that  a  tender  of  the  amount  due  on  a  mortgage  after  the  day  fixed 
for  payment  is  a  discharge  of  the  lien  just  as  much  as  payment  is,  and 
in  the  same  way  that  a  tender  at  common  law,  made  upon  the  day 
named  in  the  condition,  has  this  effect.  The  lien  of  the  mortgage  is 
thereby  ipso  facto  discharged,  and  the  holder  of  the  mortgage  can 
only  look  to  the  personal  responsibility  of  the  person  liable  for  the 
mortgage  debt.  To  have  this  effect,  it  is  not  even  necessary  that  the 
money  should  be  brought  into  court,  or  that  it  should  be  shown  that 
the  tender  has  ever  since  been  kept  good." 

It  is  not  necessary  here  to  cite  the  authorities  which  are  there 
quoted  to  sustain  the  text,  but  in  Kortright  v.  Cady,  21  N.  Y.  343, 
78  Am.  Dec.  145,  will  be  found  an  unusually  able  and  full  opinion 
showing  that  this  was  the  doctrine  of  the  common  law,  and  that  it  is 
fully  sustained  by  authority  and  reason.  Not  only  is  this  doctrine  sup- 
ported by  the  weight  of  precedent  and  considerations  of  equity  and 
public  policy,  but  it  is  the  actual  contract  between  the  parties.     This, 


EFFECT  OF  TEXDEE  OF  PAYMENT  481 

in  the  usual  form,  provides :  "If  the  said  amount  shall  be  paid,  then 
this  mortgage  shall  be  null  and  void ;  otherwise,  it  shall  remain  in  full 
force  and  effect."  When  the  mortgagee  as  in  this  case  tenders  the 
"full  amount  due  with  all  cost,"  he  has  in  equity  done  all  that  he  can 
do,  and  the  mortgage  lien  becomes  null  and  void  by  the  terms  of  the 
contract.  By  its  very  condition  this  is  so.  It  is  otherwise  as  to  the 
debt  itself.  There  is  no  condition  as  td  that.  That  is  absolutely  due, 
and  remains  due  till  the  money  is  accepted.  The  tender  can  only,  at 
most,  stop  the  running  of  the  interest.  There  is  no  "hardship  in  this,  as 
there  would  be  in  continuing  in  force  a  mortgage  or  other  lien  after 
tender  made,  with  the  effect  of  hampering  any  other  disposition  of 
the  property  or  forcing  the  mortgagor  to  pay  the  commission  and  cost 
of  a  sale  to  prevent  the  property  going  into  the  hands  of  a  purchaser 
who  would  acquire  a  good  title  at  such  sale  if  the  tender  does  not 
discharge  the  lien.  Of  course,  ingenious  reasons  can  be  given  by  coun- 
sel, based  upon  subtle  distinctions,  to  the  contrary,  and  some  decisions 
*can  be  found  also  to  sustain  that  view ;  but  when  every  cent  due,  prin- 
cipal and  interest  and  costs,  is  tendered  the  mortgagee,  he  ought  not 
in  good  conscience  to  be  allowed,  against  the  very  terms  of  his  con- 
tract, to  maintain  his  lien,  nevertheless,  in  full  force,  with  the  oppor- 
tunity this  gives  of  exacting  (as  was  demanded  in  this  case)  additional 
sums  to  buy  that  release  which  he  is  entitled  to  have  upon  tender  of 
the  full  amount  due. 

So  much  of  the  judgment  as  adjudges  recovery  against  the  debtor 
for  the  principal  money,  with  interest  and  costs  up  to  the  time  of  the 
tender,  should  be  affirmed.  Neither  party  excepted  to  this.  But  so 
much  of  the  judgment  as  directed  a  foreclosure  and  sale,  notwith- 
standing the  full  tender  made,  should  be  reversed.  By  such  tender  the 
condition  of  the  mortgage  was  fulfilled  as  fully  as  the  mortgagor  was 
permitted  by  the  mortgagee  to  do  so,  and  the  lien  was  discharged  by 
the  terms  of  the  mortgage.^^ 

Montgomery,  J.,  concurs  in  the  dissenting  opinion. 

21  Contrary  to  the  decision  of  the  majority  of  the  court  in  the  preceding 
case,  the  weight  of  authority  is  to  the  effect  that  a  sufficient  tender,  at  ma- 
turity, of  the  amount  due,  discharges  the  mortgage.  See  Security  State  Bank 
V.  Lodge,  85  Neb.  2.55.  122  N.  W.  992  (1909) ;  Breunich  v.  Weselman,  100  N.  Y. 
G09,  2  N.  E.  385  (1885) ;  Potts  v.  Plaisted,  30  Mich.  149  (1874).  The  cases, 
however,  are  conflicting.  See  Burdick,  Real  Prop.  529.  It  should  be  observed, 
however,  that  although  a  good  tender  may  discharge  the  mortgage,  that  is, 
the  lien  upon  the  land,  yet  it  does  not  discharge  the  debt  itself.  Cowles  v. 
Marble,  37  Mich.  158  (1877) ;   Willard  v.  Harvey,  5  N.  H.  252  (1830). 

Bukd.Cas.Real  Peop. — 31 


4:82  MORTGAGES 

III,  Discharge  by  Redemption  '^^ 
1.  Who  May  Redeem 


EVERSON  V.  McMULLEN. 

(Court  of  Appeals  ©f  New  York.  1SS9.    113  N.  Y.  293,  21  N.  E.  52,  4  L.  R.  A. 

118,  10  Am.  St.  Rep.  445.) 

Appeal  from  supreme  court,  general  term,  Third  department. 

Action  by  Hannah  Everson  against  Andrew  McMullen,  to  recover 
dower.  Plaintiff  had  judgment  on  appeal  to  the  general  term,  and 
defendant  now  appeals  to  this  court. 

Finch,  J.  We  are  required  to  settle  on  this  appeal  the  disagreement 
between  the  trial  court  at  the  first  hearing  and  the  general  term,  and 
determine  which  decision  was  correct.  The  property  in  question  was 
owned  originally  by  ^lorgan  Everson,  who  mortgaged  it  to  the  Ron- 
dout  Savings  Bank  for  S12.000;  his  wife,  who  is  the  present  plaintiff, 
joining  with  him  in  the  mortgage  to  cover  her  inchoate  right  of  dower. 
Everson  died  soon  thereafter,  and  his  executor  sold  the  equity  of  re- 
demption at  public  auction  for  one  dollar.  The  case  does  not  disclose 
the  authority  upon  which  he  acted,  but  nobody  disputes  it,  and  the 
action  was  tried  upon  the  assumption  that  a  valid  title  existed  in  the 
purchaser.  That  purchaser  was  Coykendall,  who  assigned  his  bid  to 
Preston,  to  whom  the  executor's  deed  was  made.  Preston  took  title 
before  August,  1877,  and  thereupon  gave  a  new  mortgage  to  the  sav- 
ings bank  upon  the  property  for  $2,000,  to  further  secure  an  accumu- 
lation of  interest  upon  the  original  mortgage.  It  appears  that  Preston 
gave  a  bond  accompanying  the  mortgage,  and  so  became  personally 
liable  for  a  possible  deficiency,  and  the  bank  gained  that  additional 
security  for  its  unpaid  interest;  but  while  it  is  said  generally  that  the 
mortgage  was  given  to  pay  the  interest,  it  is  not  shown  that  the  mort- 
gagee accepted  tlie  new  securities  as  a  payment  pro  tanto  upon  the 
original  incumbrance  by  any  indorsement  or  equivalent  action,  or  held 
them  in  any  other  way  than  as  collateral  to  the  original  debt.  In 
August,  1877,  Preston  and  his  wife  conveyed  to  Crosby  by  a  quitclaim 
deed,  but  containing  a  provision  by  which  Crosby  assumed  and  agreed 
to  pay  the  $2,000  mortgage  given  by  Preston  to  the  bank  as  a  part  of 
the  consideration  for  the  purchase.  The  consideration  named  in  the 
deed  was  $221.  Preston  did  not  on  his  purchase  assume  or  become 
liable  to  pay  any  part  of  the  original  mortgage,  but  took  title  merely 
subject  to  its  lien.  When  he  gave  his  $2,000  bond  and  mortgage,  it 
was  in  aid  of  his  own  title,  and  not  in  pursuance  of  any  duty  due  to 
the  representatives  of   the  mortgagor.     Probably  his  obligation  was 

22  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  208. 


DISCHARGE    BY    REDEMPTION 


483 


merely  collateral  to  the  primary  lien,  and  so  both  he  and  his  land  be- 
came sureties  for  the  unpaid  interest;  but  if  not,  and  the  new  mort- 
gage was  a  payment  of  so  much  of  the  old  debt,  it  was  entirely  vol- 
untary, and  he  and  Crosby,  who  took  his  place,  stood  in  the  attitude  of 
sureties,  after  paying  the  unpaid  interest,  entitling  them  to  subrogation 
as  against  the  land.  Crosby  thereafter  conveyed  a  portion  of  the 
property  to  McMullen  by  a  warranty  deed,  free  and  clear  of  all  in- 
cumbrance. He  was  enabled  to  do  this  by  an  arrangement  at  the  time 
to  which  his  grantee  and  the  bank  were  parties.  The  substantial  point 
of  that  arrangement  was  a  distribution  of  the  original  mortgage  in 
agreed  proportions  between  the  two  parcels  into  which  by  McMullen's 
purchase  the  land  was  to  be  divided.  To  efifect  this  separation  and 
severance  of  the  lien  McMullen  gave  the  bank  a  mortgage  on  his  parcel 
for  $5,500  as  a  substitute  for  $4,000  of  the  principal  of  the  original 
mortgage,  and  $1,500  of  the  unpaid  interest  collaterally  secured  by  the 
bond  and  mortgage  of  Preston,  $500  of  the  interest  having  been  paid 
in  cash  by  Crosby.  The  bank  on  its  part  formally  released  McMul- 
len's parcel  from  the  lien  of  its  original  mortgage,  indorsing  thereon  a 
payment  of  $4,000,  and  canceled  and  discharged  the  $2,000  mortgage 
of  Preston,  and  Crosby  was  thus  enabled  to  make  his  conveyance 
free  from  incumbrance.  On  this  state  of  facts  the  widow  demanded 
dower  in  McMullen's  parcel.  The  special  term  on  the  first  trial  held 
that  she  was  bound  to  allow,  as  against  her  dower,  a  just  proportion  of 
the  original  mortgage  and  its  interest,  and  sent  the  case  to  a  referee, 
to  ascertain  that  just  proportion,  with  a  direction  that  the  McMullen 
mortgage  should  be  recognized  and  allowed  in  ascertaining  the  amount 
of  such  indebtedness.  The  general  term,  on  the  contrary,  were  of 
opinion  that  the  widow  was  not  bound  to  contribute,  and  should  have 
dower  in  the  whole  parcel,  without  allowance  or  diminution,  and  it 
is  that  controversy  which  awaits  our  judgment. 

It  is  not  doubtful  on  which  side  the  equity  exists.  The  widow  sub- 
ordinated her  dower  to  the  payment  of  the  husband's  debt.  Whoever, 
in  the  room  of  a  foreclosure  by  the  mortgagee,  pays  that  debt  to  him 
when  under  no  personal  liability  for  its  discharge  is  entitled  in  equity 
to  the  protection  of  the  mortgagee's  right  as  against  the  dower  which 
it  covered  and  charged.  The  purchaser  from  the  husband  acquired 
only  the  equity  of  redemption.  While  technically  he  took  the  fee, 
in  truth  he  took  it  subject  to  the  interest  of  the  mortgagee,  carved 
out  of  it  by  the  mortgage,  as  a  lien.  Payment  to  the  mortgagee  in  an 
equitable  sense  is  a  purchase  of  that  interest  from  him,  and  in  equity 
the  owner  of  the  fee  holds  it  under  the  mortgagee  as  to  that  interest, 
and  under  the  husband  only  as  to  the  equity  of  redemption.  That  is 
an  answer  to  the  doctrine  invoked  by  the  respondent,  that  a  release  of 
dower  is  available  only  to  one  who  claims  under  the  very  title  which 
was  created  by  the  conveyance  with  which  the  release  is  joined.  Mal- 
loney  v.  Horan,  49  N.  Y.  118,  10  Am.  Rep.  335.  That  would  be  a 
good  answer  to  the  appellant's  claim  in  a  court  of  law,  possibly,  but 


484  MORTGAGES 

does  not  govern  his  case  in  equity,  since  there  the  truth  of  his  holding 
outside  of  the  legal  form  is  under  the  mortgage  to  the  extent  of  the 
mortgage  debt.  For  his  payment  of  that  debt  is  not  a  duty  which  he 
owes  to  the  husband's  estate,  or  to  any  one,  but  a  transaction  in  his 
own  interest,  the  exact  and  obvious  purpose  of  which  is  to  add  the 
right  of  the  mortgagee  to  the  right  bought  of  the  husband.  The  widow 
is  left  where  her  own  voluntary  act  placed  her.  By  joining  in  the 
mortgage  she  postponed  her  dower  to  the  equity  of  redemption.  She 
has  that  right  still,  and  seeks  to  enlarge  it  because  of  a  payment  made, 
not  by  her  husband,  or  in  performance  of  a  duty  due  to  him  or  those 
representing  him,  bu\  by  one  acting  wholly  in  his  own  interest,  and 
seeking  to  add  to  that  as  acquired  from  the  husband  the  further  right 
held  by  the  mortgagee.  The  purchaser  in  the  present  case  took  his  land 
charged  as  surety  for  the  husband's  debt.  While  he  personally  was 
not  bound  to  pay  it,  his  land  was  held,  and,  paying  the  debt  of  hus- 
band and  wife  as  represented  by  the  mortgage,  he  had  a  right  as 
against  them  to  be  subrogated  to  the  position  of  the  mortgagee,  and 
to  stand  in  equity  as  the  purchaser  and  holder  of  his  security. 

Thvis  far  I  have  assumed  that  the  giving  of  the  new  mortgage  operat- 
ed as  a  payment  pro  tanto  of  that  held  by  the  bank.  That  is  a  need- 
less concession,  because  the  finding  in  this  case  rebuts  any  intention 
of  payment,  and  establishes  that  a  severance  of  the  original  lien  was 
all  that  was  contemplated  by  the  parties,  and  the  giving  of  the  new 
mortgage  was  meant  in  its  practical  effect  to  serve  as  a  transfer  of  so 
much  of  the  original  lien  to  the  severed  parcel.  Equity  may  look 
through  the  form  of  the  transaction  to  ascertain  its  substance,  and,  so 
looking,  cannot  fail  to  see  that  the  new  mortgage  is  so  much  of  the  old 
one,  in  a  changed  form,  but  secures  the  old  debt  as  did  its  predecessors. 
The  finding  is  justified  by  the  facts,  and  upon  that  basis  the  dower 
remain  subject  to  the  proportionate  part  of  the  original  lien.  I  think 
these  views  are  fully  sustained  by  the  authorities.  In  Swaine  v. 
Ferine,  5  Johns.  Ch.  491,  9  Am.  Dec.  318,  the  mortgage  given  by  the 
husband  and  wife  was  outstanding  at  his  death.  The  equity  of  re- 
demption passed  to  the  heir,  who  redeemed  the  land  by  paying  the 
mortgage,  and  the  widow,  who  claimed  dower,  was  required  to  con- 
tribute her  ratable  proportion  of  the  redemption  money.  In  Popkin 
V.  Bumstead,  8  Mass.  491,  5  Am.  Dec.  113,  the  husband  and  wife 
joined  in  a  mortgage  to  one  Capen,  and  after  the  death  of  the  hus- 
band his  administrator,  under  the  order  of  the  probate  court,  sold  the 
equity  of  redemption  to  Wheelock,  who  conveyed  it  to  Bumstead. 
The  latter  paid  off  the  mortgage,  and  it  was  discharged  of  record. 
The  widow  thereupon  demanded  her  dower,  but  the  court  held  she  was 
barred.  This  case,  which  is  very  like  the  one  at  bar,  was  cited  in  Van 
Dyne  v.  Thayre,  19  Wend.  171,  with  apparent  approval.  Judge  Cowen 
reviews  many  of  the  cases,  and  holds  that  Collins  v.  Torry,  7  Johns. 
278,  5  Am.  Dec.  273,  and  Coates  v.  Cheever,  1  Cow.  475,  were  de- 
cided without  full  consideration.     Near  the  close  of  his  opinion  he 


DISCHARGE   BY   KEDEMPTION  485 

says :  "My  deduction  from  this  and  other  cases  I  state  in  the  words 
of  Chancellor  Kent,  (4  Comm.  45,  3d  Ed. :)  'The  wife's  dower  in  the 
equity  of  redemption  only  applies  in  case  of  redemption  of  the  incum- 
brance by  the  husband  or  his  representatives,  and  not  when  the  equity 
of  redemption  is  released  to  the  mortgagee  or  conveyed.' "  I  am  not 
aware  that  the  authority  of  that  case  has  been  overthrown. 

The  cases  cited  in  behalf  of  the  widow  confirm,  rather  than  question, 
the  views  we  have  expressed.  In  Bartlett  v.  Musliner,  28  Hun,  235, 
the  purchaser  had  assumed  and  agreed  to  pay  the  mortgage  debt  as 
a  condition  of  his  purchase,  and,  having  come  under  that  obligation, 
might  be  deemed  to  have  paid  in  behalf  of  the  husband  or  his  estate. 
The  distinction  is  referred  to  in  1  Jones,  Mortg.  §  866,  where  it  is  said 
that  if  the  mortgage  "be  redeemed  by  the  heir  or  purchaser,  or  by  any 
one  interested  in  the  estate,  who  is  not  bound  to  pay  the  debt,  to  avail 
herself  of  this  right  she  must  contribute  her  proportion  of  the  charge 
according  to  the  value  of  her  interest."  In  Runyan  v.  Stewart,  12 
Barb.  537,  the  action  was  at  law,  and,  while  a  majority  of  the  court 
sustained  the  claim  of  dower,  it  was  explicitly  said  that  the  result 
would  be  different  in  equity.  In  that  case  Runyan  and  his  wife  gave 
a  mortgage,  and  thereafter  the  husband  gave  a  conveyance  to  Baker, 
who  assumed  the  payment  of  the  mortgage.  The  court  question  the 
case  of  Popkin  v.  Bumstead,  supra,  but  add  that  in  equity  Baker  might 
be  subrogated,  and  have  a  decree  for  contribution.  No  reference  was 
made  to  the  assumption  of  the  mortgage  by  Baker.  In  Jackson  v. 
Dewitt,  6  Cow.  316,  there  was  a  release  to  the  mortgagee,  and  dower 
was  denied.  In  Wedge  v.  Moore,  6  Cush.  (Mass.)  8,  the  whole  argu- 
ment is  founded  upon  an  assumption  of  the  mortgage  debt  by  the  pur- 
chaser, which  is  argued  out  from  the  facts.  In  Piatt  v.  Brick,  35  Hun, 
121,  the  action  was  by  the  purchaser  of  the  equity  of  redemption,  who 
was  not  bound  to  pay  the  mortgage  debt,  to  compel  the  mortgagee. to 
assign  his  mortgage  for  the  protection  of  the  purchaser's  title  against 
dower,  its  amount  having  been  tendered.  The  court  held  that  the  as- 
signment could  be  compelled,  that  there  was  a  right  of  subrogation, 
that  the  assignment  would  not  work  a  merger,  and  the  mortgage  could 
be  interposed  against  the  claim  of  dower.  Of  course,  the  technical 
or  formal  assignment  is  material  only  as  showing  a  transfer  rather 
than  a  payment,  and  where  no  payment  was  intended  or  made,  but  the 
mortgage  debt  subsisted  in  the  new  mortgage  given,  the  result  must 
be  the  same. 

On  the  whole,  I  am  satisfied  that  where  the  purchaser  of  the  equity 
of  redemption  is  not  bound  by  pay  the  mortgage  debt,  but  does  in  fact 
pay  it  in  aid  of  his  own  title  and  estate,  whereby  it  is  discharged,  the 
claim  of  dower  is  subject  to  a  just  contribution;  and  the  case  is 
stronger  where,  as  here,  the  technical  payment  consists  in  the  substitu- 
tion of  a  new  mortgage,  intended  to  operate  as  and  take  the  place  of 
£0  much  of  the  old  one.    The  debt  to  which  the  dower  was  subordinat- 


486  MORTGAGES 

ed  is  changed  in  form,  but  in  fact  remains,  and  the  discharged  security 
may  be  revived  when  equity  so  requires.  Gans  v.  Thieme,  93  N.  Y. 
225. 

The  judgment  of  the  general  term  and  of  the  special  term  should 
be  reversed,  and  a  new  trial  granted,  costs  to  abide  event.  All  con- 
cur.-* 


IV.  Foreclosure  -* 
1.  When  the  Right  Accrues 


VAN  SYCKEL  v.  O'HEARN. 

(Court  of  Chancery  of  New  Jersey,  1S92.     50  N.  J.  Eq.  173.  24  Atl.  1024.) 

Bill  by  Chester  Van  Syckel,  executor,  and  others,  against  Patrick 
O'Hearn  and  others,  to  foreclose  a  mortgage.     Bill  dismissed. 

Bird,  V.  C.  The  complainants  in  this  case  filed  their  bill  to  fore- 
close a  mortgage  which  was  held  by  the  testator,  in  his  lifetime,  on 
lands  in  the  bill  described.  The  bond  which  the  mortgage  was  given 
to  secure  had  been  due  for  many  years.  The  bill  was  filed  on  the 
25th  day  of  November,  1891.  In  the  month  of  March,  1891,  the 
then  owner  of  the  premises  entered  into  negotiations  with  Patrick 
O'Hearn,  one  of  the  defendants,  for  the  sale  to  him  of  the  said  prem- 
ises. O'Hearn  was  willing  to  purchase  the  premises,  provided  the  tes- 
tator, who  was  then  living,  would  not  require  the  payment  of  the 
mortgage  which  he  then  held  for  one  year  from  the  1st  of  April  then 
next  ensuing.  Both  parties  to  the  said  negotiations  requested  Mr. 
Wyckoff,  a  counselor  at  law,  and  intimately  acquainted  with  the  tes- 
tator, to  procure  the  consent  of  the  testator  that  the  time  for  pay- 
ment of  his  mortgage  should  be  extended  for  one  year  from  the  1st 
of  April,  1891.  Pie  did  procure  such  consent.  Thereupon  the  negotia- 
tions for  the  sale  and  purchase  of  the  premises  were  carried  through. 

There  being  no  doubt  as  to  the  amount  of  money  actually  due  upon 
the  bond  which  the  mortgage  was  given  to  secure,  the  only  question 
is  whether  the  complainants  had  a  right  to  commence  their  suit  to  fore- 
close said  mortgage  before  the  expiration  of  the  one  year  from  the 
1st  day  of  April,  1891.  The  complainants  say  that,  the  obligation  be- 
ing in  writing  and  under  seal,  the  time  for  the  performance  thereof 
cannot  be  enlarged  by  a  parol  agreement.  I  think  all  of  the  author- 
ities, in  this  state,  at  least,  hold  the  time  for  performance  of  every 
such  contract  may  be  extended  bv  parol.  Bigelow  v.  Rommelt,  24 
N.  J.  Eq.  115;    Tompkins  v.  Tompkins,  21  N.  J.  Eq.  338;    Maryott 

23  A.s  to  the  right  of  a  widow  to  redeem,  see  Bnrdick.  Real  Prop.  §  539,  and 
cases  there  cited. 

2*  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  210-212. 


FORECLOSURE  487 

V.  Renton,  Id.  381 ;  Stryker  v.  Vanderbilt,  25  N.  J.  Law,  482 ;  Bell 
V.  Romaine,  30  N.  J.  Eq.  28;  Sharp  v.  Wyckoff,  39  N.  J.  Eq.  376; 
Measurall  v.  Pearce,  (Ch.)  3  Atl.  92 ;  King  v.  Morford,  1  N.  J.  Eq. 
274;  Stoutenburgh  v.  Tompkins,  9  N.  J.  Eq.  332;  Baldwin  v.  Salter, 
8  Paige  (N.  Y.)  473;    Lattimore  v.  Harsen,  14  Johns.  (N.  Y.)  330.. 

Again,  the  complainants  say  that,  if  the  time  for  performance  of  a 
written  contract  may  be  extended  or  enlarged  by  parol,  some  consid- 
eration must  be  shown  therefor  before  the  court  will  enforce  such 
parol  contract.    The  proposition  thus  stated  is  supported  by  the  au- 
thorities.    Parker  v.  Jameson,  32  N.  J.  Eq.  222;    French  v.  Griffin, 
18  N.  J.  Eq.  279,  281.     But  a  court  of  equity  will  sometimes  prevent 
parties  from  disregarding  their  promises,  even  when  no  consideration 
has  accrued  to  them  upon  the  making  of  such  promise.     If  a  party 
asking  the  aid  of  the  court  waive  strict  performance  of  his  contract, 
and  make  promises  to  the  defendant,  upon  which  the  latter  has  acted 
and  altered  his  position,  and  it  should  appear  to  the  court  to  work 
a  hardship  to  the  defendant  to  allow  the  complainant  to  withdraw  his 
waiver,  a  court  of  equity  always  applies  the  doctrine  of  estoppel.    In 
auch  case,  although  no  consideration  or  benefit  accrues  to  the  person 
making  the  promise,  he  is  the  author  or  promoter  of  the  very  con- 
dition of  affairs  which  stand  in  his  way;    and,  when  this  plainly  ap- 
pears, it  is  most  equitable  that  the  court  should  say  that  they  shall 
so  stand.    Martin  v.  Righter,  10  N.  J.  Eq.  510;  Church  v.  Iron  Works 
45  N.  J.  Law,  133;   Bank  v.  Fulmer,  31  N.  J.  Law,  55,  86  Am.  Dec 
193;    King  v.  Morford,  supra;    Huffman  v.  Hummer,  18  N.  J.  Eq 
83,  90;    Stryker  v.  Vanderbilt,  supra;    Miller  v.  Chetwood,  2  N.  J 
Eq.  208;    Cox  v.  Bennet,  13  N.  J.  Law,   165;    Lee  v.  Kirkpatrick 
14  N.  J.  Eq.  264,  267;    Continental  N.  Bank  v.  National  Bank,  50 
N.  Y.  575;   Garrison  v.  Garrison,  29  N.  J.  Law,  153. 

The  bill  should  be  dismissed,  with  costs. 


2.  Judgment  upon  Fore;cIvOSUrS 


VERNER  v.  BETZ. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1S90.    46  X.  J.  Eq.  256,  19  Atl. 
206,  7  L.  R.  A.  6.30,  19  Am.  St.  Rep.  387.) 

Appeal  from  court  of  chancery;  Bird,  Vice-Chancellor.  13  Atl. 
622. 

The  bill  of  complaint  sets  forth  that  the  appellee,  John  F.  Betz, 
held  a  mortgage  on  a  lot  of  land  in  the  city  of  Camden,  given  by 
August  Muench,  one  of  the  defendants,  to  secure  a  bond  'conditioned 
for  the  payment  of  $1,500,  with  interest,  dated  October  10,  1885, 
duly  recorded  October  17,  1885,  and  that  there  were  other  sub?e:!i!ent 


488  MORTGAGES 

incumbrances;  that  when  the  mortgage  was  executed  and  delivered 
to  him  the  premises  consisted  of  a  two-story  frame  dwelHng-house, 
and  the  lot  of  land  therein  described,  whereon  the  house  was  erected ; 
that  in  February,  1887,  without  his  knowledge  or  consent,  Muench 
removed  the  dwelling-house  to  another  lot,  about  40  feet  northward; 
that  at  the  time  of  removal  this  other  lot  belonged  to  E.  A.  Arm- 
strong, trustee  for  an  association,  who  by  deed  dated  July  29,  1887, 
conveyed  the  land  to  Muench,  and  Muench  and  wife,  by  deed  dated 
August  3,  1887,  conveyed  to  Henry  Verner.  He  further  claims  that 
the  removal  of  the  house,  the  purchase  and  sale  of  the  property,  were 
fraudulent;  that  the  security  of  his  mortgage  is  thereby  diminished; 
that  it  is  still  subject  to  the  lien  of  his  mortgage,  and  should  be  re- 
turned to  the  land  described  therein ;  that  Muench  has  erected  partly 
on  the  mortgaged  lot  of  land  a  two-story  frame  building,  used  as  a 
dancing  hall  and  bowling  alley,  24  feet  in  width  and  58  feet  in  length, 
and  the  part  thereof  erected  on  the  mortgaged  premises  is  4  feet  in 
width  and  58  feet  in  depth;  that  other  persons  claim  building  liens 
on  the  building,  and  the  lots  whereon  it  stands;  and  the  title  to  the 
land  on  which  the  building  is  erected,  adjoining  the  mortgaged  land, 
is  now  in  other  parties.  He  also  sets  forth  that  the  lot  of  land,  with- 
out the  building,  is  worth  about  $250,  and  inadequate  to  secure  and 
raise  the  amount  of  his  mortgage ;  and  that  Muench  is  insolvent.  He 
therefore  prays  a  foreclosure  and  sale  of  the  mortgaged  premises,  that 
Muench  and  Verner  may  be  decreed  to  return  the  frame  dwelling- 
house  to  and  upon  the  lot  of  land  described  in  his  mortgage,  and  that 
they  may  be  restrained  from  conveying  or  creating  any  lien  on  the 
same.  The  defendant  Verner  denies  all  fraud ;  claims  to  be  a  bona 
fide  purchaser  for  full  value,  and  without  notice  of  complainant's 
mortgage,  or  of  the  removal  of  the  dwelling-house  from  the  mort- 
gaged premises.  Upon  the  proofs  taken,  a  decree  was  made  that,  un- 
less Verner  pay  the  complainant's  debt  and  costs  within  20  days,  a 
receiver  be  appointed  to  take  charge  of  the  dwelling-house,  and  move 
it  back  to  the  lot  whence  it  was  removed,  and  that  the  mortgaged  prem- 
ises be  sold  to  satisfy  the  debt  secured  by  the  mortgage,  with  other 
incumbrances,  and  costs.  The  defendant  Verner  appeals  from  this 
decree. 

ScuDDER,  J.,  (after  stating  the  facts  as  above.)  The  exact  forrn 
in  which  this  decree  is  made  for  the  removal  of  the  house  back  to 
the  mortgaged  premises  from  which  it  was  taken  is,  so  far  as  my 
examination  of  the  authorities  has  gone,  without  precedent;  but  this 
may  be  not  objectionable,  if,  in  administering  equitable  relief,  it  be 
found  necessary  to  apply  a  remedy  which  is  unusual.  The  design  of 
the  bill  is  to  restore  to  the  mortgagee  his  security,  which  he  alleges 
has  been  taken  from  him  by  the  severance  of  the  dwelling-house  from 
the  land  covered  by  his  mortgage,  and  its  annexation  to  land  owned 
by  another.     The  defense  is  that  the  house  was  removed  on  another 


FORECLOSURE  489 

lot,  to  make  room  for  a  larger  building  which  was  to  be  extended 
over  on  the  lot  of  land  from  the  adjoining  premises;  that  the  de- 
fendants acted  in  good  faith;  that  the  complainant  had  notice,  and, 
if  he  did  not  consent,  did  not  object;  that  a  full  money  considera- 
tion was  paid,  without  any  actual  notice  of  the  lien  of  the  mortgage 
on  the  land  from  which  the  building  was  removed,  and  that  the  de- 
fendant Verner,  who  appeals,  is  a  bona  fide  purchaser  of  the  building. 

The  facts  are  not  as  fully  proved  as  they  might  have  been,  and  are 
thus  likely  to  mislead  the  court.  We  do  not  find  in  the  evidence  proof 
of  the  knowledge  of  the  defendant  Verner  of  the  transfer  of  the 
building  from  one  lot  of  land  to  the  other,  by  which  he  may  be  charged 
with  constructive  notice  of  the  lien  of  the  mortgage,  nor  actual  no- 
tice of  a  fraud  that  was  intended,  which  appears  to  have  been  sat- 
isfactory to  the  court  below.  It  appears  that  Verner  lived  in  Phila- 
delphia up  to  February  15th,  when  he  moved  to  Camden,  and  opened 
a  grocery  store  about  two  squares  from  Muench's  place  of  business, 
and  after  that  time  went  there  frequently.  He  kept  bar  for  him  from 
May  to  August.  Muench  testifies  that  the  house  was  removed  about 
the  3d  or  4th  of  February,  and  thinks  they  started  in  January.  This- 
was  before  Verner  came  to  Camden.  Verner  says  he  did  not  know 
that  the  house  had  been  moved  from  another  lot  until  after  he  had 
bought  it.  This  evidence,  if  believed,  shows  that  he  neither  saw  nor 
knew  that  the  house  was  moved  from  the  mortgaged  premises,  and 
there  was  not  a  fraudulent  knowledge  or  collusion  in  the  purchase. 
Without  proof  of  such  collusion,  the  testimony  of  two  witnesses  that 
Muench  told  them  "he  removed  the  dwelling-house  so  that,  if  the 
sheriff  come  on  him,  he  would  have  a  house  anyhow,"  is  not  compe- 
tent to  show  that  Verner  had  knowledge  of  a  fraudulent  purpose,  and 
participated  in  it.  If  said,  it  was  spoken  between  other  parties  in  his 
absence.     Faulkner  v.  Whitaker,  15  N.  J.  Law,  438. 

The  payment  of  the  consideration  by  Verner  to  Muench  is  testified 
to  by  them,  and  by  Muench's  wife,  who  says  she  saw  money  paid, 
without  knowing  the  amount.  The  purchase  price,  they  say,  was  $1,- 
300,  paid  in  different  sums,  at  several  times, — $400  on  February  15th, 
$300  July  30th,  $500  on  August  1st,  and  $100  in  wages  due  Verner. 
The  first  money  was  brought  from  Philadelphia,  obtained  by  selling 
out  a  grocery  store  there,  and  cash  on  hand.  The  second  and  third 
payments  were,  as  Verner  says,  borrowed  from  his  brother.  The 
first  sum  was  $400,  loaned  to  assist  Muench  in  building.  Afterwards, 
he  says,  when  he  asked  for  it,  he  was  told  that  he  (Muench)  had  no 
money,  and  he  offered  to  sell  the  house  and  lot.  He  did  not  want  it, 
but,  with  the  advice  and  help  of  his  brother,  he  bought  it  to  save  los- 
ing the  money  he  had  loaned.  Although  this  money  was  all  paid 
before  August  3d,  when  the  deed  was  dated,  it  was  not  a  pre-existing 
debt,  without  parting  with  anything  of  value  at  the  time  of  convey- 
ance, depriving  the  defendant  Verner  of  the  character  of  a  bona  fide 


4:90  MORTGAGES 

purchaser  for  value,  as  was  argued  by  counsel ;  but  all,  excepting  the 
first  two  items,  were  parts  of  a  present  consideration,  appropriated, 
when  made,  to  its  payment,  and  sufficient  to  constitute  the  defendant 
Verner  a  bona  fide  purchaser  in  equity.  Mingus  v.  Condit,  23  N.  J. 
Eq.  313;  De  Witt  v.  Van  Sickle,  29  N.  J.  Eq.  209;  Basset  v.  Nos- 
worthy,  2  Lead.  Cas.  Eq.  82.  The  small  profit  derived  from  the 
grocery  store  conducted  by  his  wife  while  he  attended  bar  for  ]\Iuench, 
and  before  that  time;  the  fact  that  Muench  collected  rent  of  the  ten- 
ant, after  the  alleged  sale,  as  Verner's  agent;  and  the  failure  to 
produce  the  brother  who  was  said  to  have  loaned  the  money  to  com- 
plete the  purchase, — cast  suspicion  on  the  consideration;  but  as  the 
proof  now  stands,  with  the  positive  evidence  of  three  witnesses  to 
sustain  it,  and  nothing  more  than  these  circumstances  to  overcome  it, 
we  do  not  feel  warranted  in  saying  that  this  payment  was  not  made. 
Muench  swears  positively  that  he  received  these  sums  of  money,  and 
applied  them  to  making  the  improvements  for  the  summer  garden. 

Assuming  that  the  appellant,  Verner,  bought  the  house,  and  paid 
for  it  a  valuable  consideration,  without  knowledge  of  its  removal,  as 
appears  by  the  direct  proof,  and  that  Muench  sold  it,  as  he  testifies, 
to  raise  money  to  pay  for  the  hall  building,  and  the  improvements  he 
was  making,  the  important  question  is  presented  whether  the  com- 
plainant is  in  a  position  to  obtain  the  relief  he  asks  here  for  the  in- 
jury he  has  sustained.  Can  a  court  of  equity  return  to  the  wasted 
property  the  building  that  has  been  wrongfully  removed,  and  sold 
to  a  bona  fide  purchaser,  after  being  affixed  to  other  land  not  included 
in  the  mortgage?  The  subject  of  legal  and  equitable  relief,  where 
such  removals  are  made,  is  considered  by  Mr.  Jones  in  his  book  on 
Mortgages,  (sections  143,  144,  453,  684,)  with  abstracts  from  cases 
and  numerous  citations  in  the  notes.  It  is  a  question  on  which  the 
authorities  are  divided,  and  depends  for  its  solution  on  the  effect 
given  to  a  mortgage  of  lands.  It  seems  that  where  the  mortgage  is 
regarded  as  a  conveyance  of  the  legal  title  to  the  property,  giving 
the  mortgagee  the  right  of  possession,  his  legal  ownership,  and  actual 
or  constructive  possession,  give  him  the  right  to  follow  and  recover 
the  property  severed.  The  principle  applied  is  that  property  severed 
from  the  realty,  so  as  to  become  a  chattel,  belongs  to  the  legal  owner 
of  the  land ;  but  where  the  mortgage  is  regarded  merely  as  a  lien  for 
security,  and  the  mortgagor  has  the  right  of  possession  until  eject- 
ment or  foreclosure,  there  the  mortgagee  has  merely  the  right  to  re- 
strain the  removal  of  the  property  by  injunction,  to  protect  his  lien, 
or,  after  the  removal,  only  a  right  to  recover  damages  for  the  wrong- 
ful diminution  of  his  security. 

The  case  of  Hamlin  v.  Parsons,  12  Minn.  108,  (Gil.  59),  90  Am. 
Dec.  284,  comes  nearer  to  the  conclusion  reached  by  the  decree  in 
this  case  than  any  other  to  which  my  attention  has  been  called.  There 
the  mortgagor  moved  a  dwelling  on  an  adjoining  lot  belonging  to  his 


i-ORECLOSURE  491 

\vife,  without  the  knowledge  of  the  mortgagee,  but  with  the  knowl- 
edge of  the  wife ;  and  it  was  held  that  the  lien  on  the  dwelling-house 
remained,  and  the  mortgagee  might  sell  the  lot  of  land  covered  by  the 
mortgage,  and  afterwards  the  house,  to  satisfy  his  mortgage.  But 
in  Harris  v.  Bannon,  78  Ky.  568,  where  a  petition  was  filed  in  equity 
to  subject  to  the  lien  created  by  the  mortgage  a  number  of  cottage 
buildings  which  had  been  removed  to  other  land,  and  affixed,  it  was 
held  that  when  the  buildings  were  severed  from  the  mortgaged  prem- 
ises, and  had  become  part  of  another  freehold,  the  lien  upon  them  was 
gone.  In  Peirce  v.  Goddard,  22  Pick.  559,  33  Am.  Dec.  764,  the  ma- 
terials of  a  dwelling-house  or  mortgaged  land  were  used  in  the  con- 
struction of  a  house  upon  another  lot  of  land.  It  was  said  the  right 
of  property  vested  in  the  grantee  of  that  land,  and  the  mortgagee 
could  not  maintain  trover  against  the  purchaser,  either  for  the  new 
house,  or  the  old  materials  used  in  its  construction.  In  Cooper  v. 
Davis,  15  Conn.  556,  millstones  were  severed  from  the  mill,  and  sold 
by  the  mortgagor.  It  was  held  that  the  title  passed  to  the  purchaser, 
and  there  was  no  power  to  seize  them  after  they  had  been  severed 
and  carried  away.  In  Buckout  v.  Swift,  27  Cal.  433,  87  Am.  Dec. 
90,  where  a  house  subject  to  a  mortgage  was  floated  off  by  a  flood 
into  the  street,  and  was  bought  while  in  that  position,  it  was  said  that 
the  severance  affected  the  right  of  lien ;  that  a  building  on  land  was 
subject  to  the  lien  of  the  mortgage  whether  there  at  the  time  of  the 
mortgage,  or  built  there  afterwards,  but,  when  severed,  the  lien  was 
lost.  If  the  contrary  w^ere  the  law,  everything  affixed  to  mortgaged 
lands  might,  when  severed  and  sold  to  a  bona  fide  purchaser,  be  fol- 
lowed and  reclaimed.  Clark  v.  Reyburn,  1  Kan.  281 ;  Kimball  v. 
Darling,  32  Wis.  684;  Van  Pelt  v.  McGraw,  4  N.  Y.  110;  Gardner 
v.  Heartt,  3  Denio  (N.  Y.)  232 ;  Lane  v.  Hitchcock,  14  Johns.  (N. 
Y.)  213;  Hutchins  v.  King,  1  Wall.  53,  1-7  L.  Ed.  544;  Gore  v.  Jen- 
ness,  19  Me.  53 ;  Gooding  v.  Shea,  103  Mass.  360,  4  Am.  Rep.  563 ; 
Byrom  v.  Chapin,  113  Mass.  308;  Wilson  v.  Maltby,  59  N.  Y.  126; 
and  many  other  cases, — might  be  cited  as  illustrating  the  differences 
of  opinion,  and  the  principles  applied,  in  determining  the  rights  of 
parties  when  fixtures  are  severed  and  sold  from  mortgaged  lands.  A 
distinction  is  made  in  Hoskin  v.  Woodward,  45  Pa.  42,  where  it  is 
said  that  a  mortgagor  may  sell,  in  the  usual  way,  lumber,  fire-wood, 
coal,  ore,  or  grain  growing  on  the  land,  until  the  mortgagee  stops  him 
by  ejectment  or  estrepement;  for  these  things  are  usually  intended 
for  consumption  and  sale  and  the  sale  of  them  is  the  usual  way  of 
raising  the  money  to  pay  the  mortgage.  But  in  the  case  of  a  factory 
or  other  building  it  is  from  the  use  of  it  as  it  is,  and  not  by  its  con- 
sumption or  its  sale  by  piecemeal,  that  all  its  profits  are  to  be  derived. 
It  is  manifest  that  this  cannot  be  reconciled  with  cases  cited  above, 
as  furnishing  a  rule  applicable  to  all  fixtures,  but  that  any  general 
rule  must  be  based  on  the  right  of  property.     If  the  mortgagee  have 


492  MORTGAGES 

the  legal  ownership  and  right  of  possession,  he  may  follow  things 
severed  and  removed  from  the  mortgaged  lands  without  his  consent 
wherever  he  can  find  them.  If  he  holds  title  under  the  mortgage  only 
as  security  for  his  lien,  then  the  remedies  appointed  for  preserving 
the  security,  and  compensating  for  any  loss  sustained  by  its  diminu- 
tion, are  such,  only,  as  the  mortgagee  may  use.  The  theory  in  the 
latter  case  is  that,  as  to  innocent  third  parties,  the  mortgagor  is  the 
owner  of  the  property,  and  may  sever  and  sell  until  restrained  by 
injunction,  or  ejected  by  entry,  or  barred  by  foreclosure.  In  any 
view  taken  of  the  respective  rights  of  mortgagor  and  mortgagee,  the 
latter  may  have  the  security  of  his  lien  protected  by  injunction.  Brady 
V.  Waldron,  2  Johns.  Ch.  (N.  Y.)  148;  Emmons  v.  Hinderer,  24 
N.  J.  Eq.  39. 

In  our  state  the  title  of  the  mortgagee  to  lands  under  his  mort- 
gage has  been  defined  by  this  court  in  Shields  v.  Lozear,  34  N.  J. 
Law,  496-503,  3  Am.  St.  Rep.  256,  where  it  is  said  that  the  mort- 
gage is  regarded,  not  as  a  common-law  conveyance  on  condition,  but 
as  a  security  for  debt ;  the  legal  estate  being  considered  as  subsisting 
only  for  that  purpose.  This  is  elsewhere  called  the  equitable  and  the 
American  doctrine,  by  which  the  mortgagor  has  a  right  to  lease,  sell, 
and  in  every  respect  deal  with  the  mortgaged  premises  as  owner  so 
long  as  he  is  permitted  to  remain  in  possession,  and  so  long  as  it  is 
understood  and  held  that  any  person  taking  under  him  takes  subject 
to  all  the  rights  of  the  mortgagee.  4  Kent,  Comm.  157.  There  is  no 
difficulty  in  applying  this  rule  while  fixtures  remain  attached  to  the 
realty ;  and  so  long  as  the  mortgagor  continues  in  possession,  or 
when  the  property  severed  passes  into  the  possession  of  a  person  in 
collusion  with  him  to  defeat  the  lien  and  security  of  the  mortgagee, 
whether  upon  or  off  the  mortgaged  premises,  it  would  seem  that  the 
rights  of  the  mortgagee  would  be  unaffected.  But  when  the  prop- 
erty is  severed,  and  sold  to  an  innocent  purchaser,  the  lien  in  equity 
is  gone,  and  the  remedy  of  the  mortgagee  is  an  action  at  law  against 
the  mortgagor,  and  those  who  act  with  him  to  impair  or  defeat  the 
security  of  the  mortgage.  The  case  of  Kircher  v.  Schalk,  39  N.  J. 
Law,  335,  holds  that  a  mortgagee  of  real  estate,  whose  debt  is  due, 
but  who  has  not  entered  into  possession,  cannot  maintain  replevin  for 
a  steam-engine  affixed  to  the  realty  subject  to  the  mortgage,  which 
the  mortgagor  or  his  assigns  had  severed  from  the  realty,  and  re- 
moved from  the  premises,  because  the  mortgagee  cannot,  with  pro- 
priety, insist  upon  being  legally  entitled  to  a  remedy,  the  enforcement 
of  which  pertains  to  the  general  legal  ownership  of  the  land.  But  in 
Turrell  v.  Jackson,  39  N.  J.  Law,  329,  it  was  decided  that  a  mort- 
gagee may  maintain  an  action  on  the  case  against  the  mortgagor  or 
his  assigns  for  an  injury  to  the  security  resulting  from  the  removal 
of  fixtures,  or  other  waste,  by  the  defendant.  Notice,  without  fraud, 
was  said  to  be  sufficient  to  charge  the  purchaser  with  liability. 


FORECLOSURE  493 

It  is  not  necessary  in  this  case  to  determine  whether  a  court  of  law 
will  enforce  this  remedy  against  a  bona  fide  purchaser  without  actual 
notice,  or  the  exact  form  of  remedy  that  may  be  then  used;  but  in  a 
court  of  equity  the  right  of  such  purchaser  is  equal  to  the  equity  of 
a  mortgagee  who  has  not  such  title  to  the  article  severed  that  he  can 
maintain  an  action  for  the  recovery,  in  specie,  of  the  fixtures  removed. 
It  is  a  maxim  that  where  there  is  equal  equity  the  law  must  prevail. 
It  is  upon  this  account  that  a  court  of  equity  constantly  refuses  to 
interfere,  either  for  relief  or  discovery,  against  a  bona  fide  purchaser 
of  the  legal  estate  for  a  valuable  consideration,  without  notice  of  the 
advefse  title,  if  he  chooses  to  avail  himself  of  the  defense  at  the 
proper  time,  and  in  the  proper  mode.  1  Story,  Eq.  Jur.  §  64c.  The 
conclusion  given  in  2  Pom.  Eq.  Jur.  §  743,  on  this  matter  is  that, 
wherever  one  or  the  other  of  the  parties  has  a  legal  estate  over  which 
a  court  of  law  can  exercise  jurisdiction,  then,  in  an  equity  suit  be- 
tween them,  as  a  general  rule  the  defense  of  a  bona  fiae  purchaser 
for  valuable  consideration  will  avail  as  against  the  plaintiff,  whether 
he  has  a  legal  or  an  equitable  estate.  In  either  case  the  court  of 
equity  simply  withholds  its  hand,  and  remits  the  party  to  a  court  of 
law.  In  the  review  of  cases,  which  appear  to  conflict  with  the  con- 
clusion in  this  case,  cited  from  the  English  courts,  it  must  be  borne 
in  mind  that  there  the  mortgagee  has  the  legal  title  to  the  mortgaged 
land,  and  the  right  of  possession. 

Having  found  that  the  appehant,  Verner,  is  a  bona  fide  purchaser 
of  the  building  in  controversy  affixed  to  his  land,  according  to  the 
weight  of  the  evidence  as  presented,  the  decree  will  be  reversed,  and 
modified  so  that  the  land  described  in  the  mortgage,  with  the  building 
and  improvements  thereon,  as  they  exist  at  the  time  of  filing  the  bill, 
shall  be  sold  to  satisfy  the  mortgage;  and,  as  to  the  injury  sustained 
by  the  removal  of  the  building  formerly  on  the  land,  the  mortgagor 
will  be  remitted  to  his  remedy  at  law.    Decree  reversed  unanimously. 


3.  Foreclosure  under  Power  oe  Sal:^ 


See  Fiske  v.  Mayhew,  ante,  p.  433. 


494  LIENS    OTHER   THAN    MORTGAGES 


LIENS  OTHER  THAN  MORTGAGES 
I.  Mechanics'  Liens  ^ 


STELTZ  V.  ARMORY  CO. 

(Supreme  Court  of  Idaho,  1908.  15  Idaho,  551,  99  Pac.  98,  20 

L.  R.  A.  [N.  S.]  872.) 

Appeal  from  district  court,  Latah  county;   Edgar  C.  Steele,  Judge. 

Mechanic's  lien  foreclosure  by  George  Steltz  against  the  Armory 
Company,  Limited.  Judgment  for  plaintiff  and  allowing  a  set-off 
in  favor  of  defendant,  and  both  parties  appeal.     Affirmed. 

AiLSHiE,  C.  J.  This  action  was  instituted  by  the  plaintiff  for  the 
foreclosure  of  a  mechanic's  lien.  Plaintiff  entered  into  a  contract  with 
the  defendant  corporation  to  furnish  the  material  and  construct  an 
armory  building  in  the  city  of  Genesee.  Plans  and  specifications  were 
adopted,  the  price  and  terms  of  payment  were  agreed  upon,  and  the 
building  was  erected.  The  company  went  into  possession  of  the  build- 
ing and  continued  to  use  it  for  some  six  weeks,  at  which  time  an  un- 
usual windstorm  occurred  and  blew  down  the  front  of  the  building. 
The  company  declined  to  pay  the  contractor,  whereupon  he  filed  his 
lien  and  prosecuted  this  action  to  foreclose  the  same.  The  defend- 
ant company  answered,  admitting  the  contract,  but  denying  that  the 
building  was  ever  completed  "in  a  good,  substantial,  and  workman- 
like manner."  It  also  alleged  that  as  an  affirmative  defense  the  build- 
ing was  defectively  constructed,  in  that  the  front  wall  was  not  prop- 
erly tied  to  the  adjoining  building,  and  other  defects  were  charged, 
whereby  the  defendant  alleged  damages  in  the  sum  of  $200.  The 
trial  resulted  in  a  judgment  in  favor  of  the  plaintiff  for  a  balance  due 
of  $700  on  the  contract  and  $28.50  for  extras.  The  court  found  in 
favor  of  the  defendant  on  its  allegation  of  damages  in  the  sum  of 
$140,  which  sum  was  offset  against  the  total  balance  due  on  the  con- 
tract. Both  parties  appealed  from  the  judgment,  and,  since  each  party 
is  both  appellant  and  respondent  in  this  court,  we  shall  refer  to  them 
in  this  opinion  as  plaintiff  and  defendant. 

Findings  4,  5,  6,  and  7  are  as  follows:  "(4)  The  court  finds  that 
the  defendant  tendered  into  court  the  sum  of  $610.  and  is  shown  to 
have  tendered  the  same  amount  to  the  plaintiff  at  a  period  long  prior 
to  the  time  of  the  case.  (5)  The  court  also  finds  that  the  defendant 
corporation  has  been  in  possession  of  the  building  ever  since  the  date 
shortly  after  its  construction,  and  that  they  went  into  possession  of 
the  said  building  with  full  knowledge  of  the  defect  alleged  to  have 

1  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  213. 


mechanics'  liens  495 

been  the  cause  of  the  falUng  of  the  wall.  (6)  The  court  finds  that  the 
north  wall  of  the  building  was  defectively  constructed,  and  that  it 
was  not  properly  tied  to  the  building,  and  that  on  an  occasion,  shortly 
after  the  defendant  had  taken  possession  of  the  same,  the  wall  was 
blown  down  by  a  high  wind,  and  the  court  finds  that  all  of  the  afore- 
said facts  are  substantiated  by  the  evidence.  (7)  The  court  further 
finds  that  it  would  take  the  sum  of  $140  to  replace  the  said  wall,  and 
that  the  defendant  has  been  damaged  to  that  extent,  and  the  court 
finds  that  the  defendant  is  entitled  to  deduct  from  the  amount  of 
the  contract  the  sum  of  $140." 

Defendant  contends  that  the  fifth  finding,  to  the  effect  that  the  com- 
pany went  into  possession  of  the  building  with  full  knowledge  of 
the  defect  alleged  to  have  been  the  cause  of  the  falling  of  the  wall, 
is  unsupported  by  the  evidence,  while  the  plaintiff  contends  that  find- 
ings 6  and  7,  to  the  effect  that  the  north  wall  of  the  building  was 
defectively  constructed  to  the  defendant's  damage  in  the  sum  of  $140, 
is  not  supported  by  the  evidence.  We  may  dispose  of  these  conten- 
tions on  the  part  of  both  plaintiff  and  defendant  by  saying  that  there 
is  a  substantial  conflict  in  the  evidence  on  all  these  points,  and  that 
there  is  sufficient  evidence  in  the  record  to  support  each  of  the  find- 
ings. We  would  not  disturb  them  on  that  ground.  The  contract  pro- 
vided that  the  plaintiff'  should  construct  this  building  "in  a  good,  sub- 
stantial, and  workmanlike  manner."  Evidence  was  produced  tending 
to  show  that  the  defendant  complied  with  this  provision  of  the  con- 
tract. There  was  also  a  great  deal  of  evidence  produced  by  defend- 
ant to  the  effect  that  he  had  not  complied  with  this  part  of  the  con- 
tract. There  is  also  evidence  both  ways  on  the  question  as  to  whether 
defendant  had  knowledge  in  a  general  way  of  this  defect  at  the  time 
it  entered  into  possession  of  the  building.  It  must  be  admitted,  we 
think,  that  the  defect  in  not  tieing  the  wall  to  the  adjoining  building 
with  spikes  or  ties  was  not  an  obvious  or  patent  defect,  but  was 
rather  a  latent  defect.  Had  it  been  a  patent  and  obvious  defect  or 
a  failure  to  complete  the  building,  the  defendant  would,  under  ordi- 
nary circumstances,  be  held  to  have  waived  the  same  by  taking  pos- 
session of  the  building  without  doing  so  conditionally  or  protesting 
against  its  condition  or  demanding  its  completion.  It  may  often  hap- 
pen that  a  building'  or  structure  contains  a  latent  defect  that  the 
owner  cannot  reasonably  discover  at  the  time  he  takes  possession. 
For  instance,  the  material  of  which  it  is  constructed  may  be  of  an 
inferior  quality,  or  the  work  may  have  been  so  imperfectly  done  as 
to  render  the  building  or  structure  of  little  use  or  slight  value,  or 
so  that  it  may  fall,  and  thereby  cause  great  damage  to  the  owner.  In 
such  case  the  owner,  although  having  paid  for  the  building,  would  be 
entitled  to  recover  damages  for  breach  of  the  contract.  Barker  v. 
Nichols,  3  Colo.  App.  25,  31  Pac.  1024. 

Counsel  for  the  defendant  contends  that  these  defects  actually  ex- 


496  LIENS    OTHER   THAN    MORTGAGES 

isted  as  proven  and  found  by  the  court,  and  that  for  such  reason  the 
plaintiff  had  failed  to  "faithfully  perform  and  fully  comply  with  the 
contract  on  his  part,''  and  was  consequently  not  entitled  to  recover, 
and  particularly  not  entitled  to  a  lien,  under  section  7  of  the  Lien 
Laws  (Sess.  Laws  1899,  p.  148).  In  support  of  this  contention,  plain- 
tiff cites  the  cases  of  Justus  v.  Myers,  68  Minn.  481,  71  N.  W.  667, 
and  Boots  v.  Steinberg,  100  Mich.  134,  58  N.  W.  657,  and  27  Cyc. 
402,  403.  The  Justus  Case  involved  a  contract  for  putting  in  a  heat- 
ing plant.  The  contract  contained  a  warranty  to  the  eft'ect  that  tlie 
radiation  should  be  sufficient  to  heat  the  rooms  to  75  degrees  on  the 
coldest  winter  weather,  and  that  the  plant  might  be  tested  by  the 
owner  before  accepting,  and  that,  if  not  entirely  satisfactory,  it  should 
be  made  so  by  the  contractor  without  any  additional  expenses.  The 
defendant  alleged  that  she  had  never  accepted,  but,  on  the  contrary, 
had  notified  the  plaintiff  that  it  was  not  up  to  the  requirements,  and 
that  she  would  not  accept  it.  The  court  held  that  there  was  no  sub- 
stantial compliance  with  the  contract,  and  that  they  could  not  main- 
tain their  action.  In  Boots  v.  Steinberg,  the  contract  provided  for 
the  erection  of  a  house,  and,  among  other  stipulations,  provided  that 
it  should  be  to  the  satisfaction  of  the  owner,  who  should  have  the 
right  to  act  as  superintendent  of  the  work,  or  appoint  some  one  to 
act  in  that  capacity,  and  the  last  payment  was  not  due  until  "10  days 
from  the  completion  of  said  work  to  the  satisfaction  of  said  Julius 
Steinberg."  It  appeared  from  the  evidence  that  a  number  of  things 
required  to  be  done  by  the  contract  were  never  in  fact  completed  in 
any  manner,  and  others  were  imperfectly  completed.  The  court  held 
that  the  contract  was  not  substantially  complied  with  and  refused 
plaintiff  any  relief.  The  facts  of  that  case  are  somewhat  dift'erent 
from  the  facts  of  the  present  case.  Here,  so  far  as  outside  appear- 
ances were  concerned,  and  as  a  matter  of  fact,  the  building  was  a 
completed  structure,  although  defectively  constructed.  The -company 
accepted  it,  and  one  of  the  defendant's  officers  went  far  enough  on 
the  night  it  was  opened  for  use  to  publicly  state  that  they  had  a  bet- 
ter building  than  they  had  expected  to  get  for  the  money,  and  that 
they  thanked  the  contractor  for  the  work  he  had  one.  The  trouble 
was,  however,  that,  in  the  matter  of  construction  itself,  the  building, 
although  a  completed  structure,  was  so  defectively  and  imperfectly 
erected  as  to  entail  damage  to  the  defendant  by  reason  of  the  front 
blowing  out  when  the  storm  came. 

Taking  possession  of  the  building  with  knowledg  of  the  latent  de- 
fect it  contained  is  sufficient  to  prevent  the  owner  from  denying  the 
completion  of  the  building  in  an  action  by  the  contractor  to  foreclose 
his  lien.  Section  6,  Lien  Laws  (Sess.  Laws  1899,  p.  148) ;  Boisot 
on  Mechanics'  Liens,  §  1;  Bell  v.  Teague,  85  Ala.  211,  3  South.  861. 
On  the  other  hand,  the  mere  fact  of  entering  into  possession  with 
knowledge  of  this  defect  is  not  sufficient  to  defeat  the  owner's  right 


mechanics'  liens  497 

of  action  for  breach  of  the  contract  as  to  the  quality  of  material  used, 
of  the  class  and  character  of  workmanship  put  on  the  building,  un- 
less an  express  waiver  is  shown,  or  such  other  facts  as  would  amount 
to  a  waiver.  The  owner  always  has  the  general  possession  of  the 
property,  and  the  contractor's  possession  is  only  a  special  and  lim- 
ited possession  for  the  purpose  of  doing  the  work  for  which  he  has 
contracted.  It  often  becomes  necessary  and  essential  for  the  owner 
to  take  possession  of  a  building  or  structure,  although  not  completed 
or  imperfectly  and  defectively  constructed,  in  order  to  protect  him- 
self from  still  further  and  greater  damages.  The  fact  of  such  pos- 
session should  not  be  a  bar  to  his  right  of  recovery  for  breach  of 
the  contract.  Barker  v.  Nichols,  3  Colo.  App.  25,  31  Pac.  1024; 
Hanley  v.  Walker,  79  Mich.  607,  45  N.  W.  57,  8  L.  R.  A.  207 ;  Boots 
v.  Steinberg,  100  Mich.  134,  58  N.  W.  657;  United  States  v.  Walsh, 
115  Fed.  697,  52  C.  C.  A.  419.  Knowledge  in  a  general  way  of  a 
latent  defect  of  which  the  owner  had  no  means  of  knowing  its  ex- 
tent and  latent  dangers  will  not  amount  to  a  waiver  of  the  right  of 
action  for  a  breach  of  the  contract,  in  the  absence  of  other  facts  tend- 
ing to  disclose  an  intent  to  waive  the  right  of  action. 

Under  section  6  of  the  Lien  Laws  (Sess.  Laws  1899,  p.  148),  every 
original  contractor  claiming  the  benefit  thereof  must  within  90  days, 
and  every  other  person  within  60  days,  after  the  completion  of  a 
building,  improvement,  or  structure,  or  in  case  he,  for  any  cause, 
ceases  to  labor  thereon  before  the  completion  thereof,  file  for  record 
with  the  county  recorder  his  notice  of  lien,  etc.  Section  1  of  the 
act  provides  that  every  person  performing  labor  or  furnishing  ma- 
terial for  a  building  or  structure  is  entitled  to  a  lien.  This  statute 
seems  to  be  drawn  upon  the  theory  that  any  person  who  contributes 
labor  or  material  for  the  construction,  alteration,  or  repair  of  a 
building  or  structure  on  another's  real  estate  is  entitled  to  a  lien  there- 
for. Of  course,  the  extent  of  the  lien  when  he  comes  to  foreclose 
it  must  be  measured  by  the  amount  found  due  him  on  his  contract  at 
the  time  of  filing  his  lien.  If  there  is  nothing  due  him  under  his 
contract,  he  is  not  entitled  to  any  lien;  but,  if  anything  is  found  to 
be  due  him,  he  is  entitled  to  a  lien  therefor.  This  statute  is  evidently 
based  on  the  theory  that  whoever  contributes  labor  or  material  where- 
by the  real  property  of  another  is  enhanced  in  value  shall  be  entitled 
to  a  lien  upon  the  whole  property  in  the  sum  due.  The  affirmative 
answer  and  defense  of  defendant  in  this  case  is  drawn  apparently 
on  the  theory  that  the  building,  although  at  one  time  a  completed 
structure  and  accepted  by  the  defendant,  contained  latent  defects  and 
faults  which  resulted  in  damage  to  the  defendant,  and  that  defend- 
ant was  entitled  to  recover  the  amount  of  damage  sustained  by  reason 
thereof  and  have  the  same  set  off  against  the  contract  price  of  the 
building.  The  court's  findings  and  judgment  seem  to  follow  that 
Burd.Cas.Keal  Prop. — 32 


498  LIENS    OTHER   THAN    MORTGAGES 

theory  of  the  case.  We  think  it  was  proper,  and  in  harmony  with 
the  law,  for  the  court  to  find  the  amount  of  damage  sustained  by 
defendant  on  account  of  the  defective  workmanship  and  construction, 
and  to  offset  the  same  against  the  balance  due  on  the  contract  price. 

Appellant  also  insists  that  the  court  erred  in  not  awarding  it  dam- 
ages at  the  rate  of  $5  per  day  for  each  day  it  was  kept  out  of  pos- 
session of  the  building,  from  the  1st  day  of  September  until  the 
date  it  entered  into  possession.  The  contract  contained  a  provision 
that  the  building  should  be  completed  on  the  1st  day  of  September, 
and  that  the  contractor  should  pay  the  owner  the  sum  of  $5  per  day 
for  each  day  thereafter  until  the  building  should  be  completed.  The 
court  made  no  finding  on  this  question.  In  fact,  there  was  no  issue 
tendered  on  that  subject.  The  defendant  did  not  plead  damages  on 
account  of  plaintiff's  failure  to  complete  the  building  within  the  time 
specified  in  the  contract.  There  is  no  mention  of  this  either  in  the 
answer  or  affirmative  defense.  It  would  be  manifestly  erroneous  to 
allow  a  party  to  recover  such  an  item  of  damages  for  breach  of  a 
contract  without  tendering  any  issue  whatever  on  the  subject.  Stev- 
ens V.  Home  Sav.  &  Loan  Ass'n,  5  Idaho,  741,  51  Pac.  779,  986;  Mur- 
phy V.  Russell  &  Co.,  8  Idaho,  151,  67  Pac.  427. 

We  find  no  error  in  the  record  and  the  judgment  will  therefore  be 
affirmed.  Each  party  having  appealed  in  this  case,  the  whole  cost  of 
the  two  appeals  will  be  equally  divided  between  the  parties  to  the 
action. 

SuiyiviVAN  and  Stewart,  JJ.,  concur. 


KERTSCHER  &  CO.  v.  GREEN. 

(Court  of  Appeals  of  New  York,  1012.    205  N.  Y.  522,  99 
N.  E.  146,  Ann.  Cas.  1913E,  561.) 

Appeal  from  Supreme  Court,  Appellate  Division,  First  Department. 

Action  by  Kertscher  &  Co.  against  Samuel  Green  and  others  and 
Robert  S.  Minturn  and  others.  From  a  judgment  of  the  Appellate 
Division  (143  App.  Div.  907,  127  N.  Y.  Supp.  1127),  which  affirmed 
a  judgment  for  plaintiff  (67  Misc.  Rep.  293,  124  N.  Y.  Supp.  461),  the 
first-named  defendants  appeal.    Affirmed. 

CuLLEN,  C.  J.  The  action  was  brought  to  foreclose  a  mechanic's 
lien  to  discharge  which  a  bond  had  been  given  in  compliance  with  the 
terms  of  the  statute.  The  Special  Term  of  the  Supreme  Court  ren- 
dered judgment  for  the  plaintiff,  and  that  judgment  has  been  unani- 
mously aihrmed  by  the  Appellate  Division. 

P>ut  one  objection  to  the  recovery  is  raised  on  this  appeal.  The 
plaintiff  contracted  to  perform  the  carpenter's  and  cabinet  work  and 
furnish  materials  in  the  building  to  be  erected  for  the  defendant.  By 
the  written  contract  it  was  provided:    "That  the  party  of  the  second 


mechanics'  liens  49i> 

part  will  not  at  any  time  suffer  or  permit  any  lien,  attachment,  or  other 
incumbrance  under  any  laws  of  this  state  or  otherwise,  by  any  person 
or  persons  whomsoever,  to  be  put  or  remain  on  the  building  or  prem- 
ises, into  or  upon  which  any  work  is  done  or  materials  are  furnished 
under  this  contract,  for  such  work  or  materials,  or  by  reason  of  any 
other  claim  or  demand  against  the  party  of  the  second  part,  and  that 
they  will  not  put  any  materials  on  said  building  to  which  it  has  not  ob- 
tained absolute  title ;  and  that  any  such  lien,  attachment  or  other  in- 
cumbrance, or  claim  of  a  third -party  until  it  is  removed,  shall  pre- 
clude any  and  all  claim  or  demand  for  any  payment  whatever  under 
or  by  virtue  of  this  contract,  and  in  the  event  that  same  is  not  re- 
moved, party  of  the  first  part  may  remove  same  at  the  expense,  in- 
cluding legal  fees,  of  the  party  of  the  second  part."  Payments  w^ere 
to  be  made  on  or  before  the  10th  day  of  each  month  of  80  per  cent, 
of  the  value  of  the  work  done  in  the  preceding  month.  It  was  fur- 
ther provided  that  the  final  payment  should  not  be  made  until  there 
was  filed  with  the  superintendent  or  architect  a  certificate  of  the  coun- 
ty clerk  that  no  mechanic's  lien  had  been  filed  against  the  owner  for 
work  or  materials  furnished  under  the  contract  and  the  certificate  of 
the  register  that  no  conditional  bill  of  sale  had  been  filed  by  a  third 
party  for  any  material  furnished  on  said  property.  After  the  com- 
pletion of  the  work  on  October  26,  1907,  the  plaintiff  filed  a  mechanic's 
lien  for  the  amount  due  him  under  the  contract,  to  foreclose  which  this 
action  was  brought. 

The  contention  of  the  appellants  is  that  the  lien  was  invalid  because 
by  the  contract  the  plaintiff,  the  contractor,  had  agreed  not  to  file  any 
lien.  To  this  contention  there  are  two  answers.  The  trial  court  found 
that  the  defendants  had  failed  to  uiake  the  payment  for  the  Septem- 
ber work  which  became  due  under  the  contract  on  October  10th.  As- 
suming that  the  contract  between  the  parties  is  to  be  construed  as  con- 
tended by  the  plaintiff,  the  breach  of  the  contract  by  the  defendants  by 
their  default  in  making  that  payment  relieved  the  plaintiff  from  the 
obligation  upon  its  part,  and  it  became  entitled  to  file  a  lien  for  its 
work  and  materials.  This  proposition  has  recently  been  held  by  this 
court  in  the  case  of  Greenfield  v.  Brody,  204  N.  Y.  659,  97  N.  E.  1105. 
decided  without  opinion.  In  that  case  the  contract  was  for  the  con- 
struction of  several  houses,  and  the  contractors  were  to  be  paid  ih 
part  by  the  conveyance  to  them  of  two  of  the  houses.  The  owner 
transferred  the  property,  thus  putting  it  beyond  his  power  to  comply 
with  the  contract.  It  was  held  this  authorized  a  contractor  to  file 
and  maintain  a  lien.  In  that  case  the  plaintiffs,  contractors,  had  ex- 
pressly agreed  that  under  no  circumstances  would  they  file  or  cause 
to  be  filed  any  mechanic's  lien  against  the  propertv. 

There  is  this  further  answer  to  the  appellants'  position.  As  we 
construe  the  provisions  of  the  contract,  the  paragraph  quoted  referred 
only  to  liens  filed  against  the  contractor  by  workingmen,  subcontrac- 
tors, or  materialmen.     This  is  apparent  not  only  by  the  language  "or 


500  "  LIENS    OTHER   THAN    MORTGAGES 

by  reason  of  any  other  claim  or  demand  against  the  party  of  the  sec- 
ond part,"  the  word  "other"  showing  that  the  claims  antecedently  men- 
tioned were  to  be  of  the  same  character — that  is  to  say,  against  the 
contractor — but  by  the  further  provision  that  the  owner  might  remove 
any  lien  at  the  expense  of  the  contractor,  including  legal  fees,  a  provi- 
sion quite  inapplicable  to  a  lien  filed  by  the  contractor  itself.  More- 
over, to  preclude  a  contractor  by  virtue  of  some  provision  to  that  ef- 
fect in  the  contract,  from  his  right  to  the  security  which  the  statute 
affords  him,  the  intent  and  interpretation  of  the  provision  should  be 
reasonably  clear. 

There  are  many  reasons  why  an  owner  might  wish  to  be  free  from 
the  claims  of  subcontractors  and  materialmen  against  the  principal 
contractor  which  might  involve  him  in  expensive  litigation  and  the 
possibility  of  loss  should  a  payment  to  the  principal  contractor  be 
deemed  to  have  been  improperly  made  as  against  the  lienors.  Those 
reasons  are  without  force  to  a  lien  filed  by  the  principal  contractor. 
True,  there  might  be  disputes  between  the  contractor  and  the  owner- 
as  to  the  amount  due  him,  and  these  might  involve  the  owner  in  litiga- 
tion, but  he  would  be  subject  to  the  same  risks  and  expenses  of  litiga- 
tion in  a  suit  at  law  on  the  contract  as  in  an  action  to  foreclose  the 
lien.  That  a  provision  in  a  contract,  quite  similar  in  principle  to  the 
one  before  us,  applied  only  to  the  liens  of  third  parties  against  the 
contractor,  was  held  by  the  Supreme  Court  in  Lauer  v.  Dunn,  52  Hun, 
191,  5  N.  Y.  Supp.  161,  which  decision  was  affirmed  in  this  court, 
thouqh  this  proposition  was  not  discussed  in  our  opinion  (115  N.  Y. 
405,22  N.  E.  270). 

The  judgment  appealed  from  should  be  affirmed,  with  costs. 

Gray,  Willard   Bartlktt,  Hiscock,   Chasi:,  and  Colun,  JJ., 
concur.    Vann,  J.,  absent. 

Judgment  affirmed. 


II,  Judgment  Liens  ^ 


BOURN  v.  ROBINSON. 
(Court  of  Civil  Appeals  of  Texas,  190S.    49  Tex.  Civ,  App.  157,  107  S.  W.  873.) 

Appeal  from  District  Court,  Howard  County;   R.  G.  Smith,  Judge. 

Action  by  F.  M.  Bourn  against  John  Robinson  to  foreclose  a  judg- 
ment lien.    Judgment  for  defendant,  and  plaintiff  appeals.     Affirmed. 

Hodges,  J.  On  the  1st  day  of  April,  1901,  the  appellant  recovered 
a  judgment  in  the  Circuit  Court  of  the  United  States  for  the  North- 
ern District  of  Texas,  at  Abilene,  against  one  Frank  Tomlinson  for 
the  sum  of  $2,629.23  and  all  costs  of  suit.  Subsequently,  on  the  30th 
day  of  April,  1903,  this  judgment  was  abstracted  and  filed  for  record 

*  For  discussion  of  principles,  see  Burdicli,  Real  Prop.  §  214. 


JUDGMENT   LIENS  501 

in  the  office  of  the  county  clerk  of  Howard  county.  It  was  properly 
recorded  and  indexed  as  required  by  law  for  fixing  judgment  lie'ns. 
At  the  time  the  judgment  was  filed  for  record  in  the  oflice  of  the  coun- 
ty clerk  of  Howard  county,  Dawson  county  was  unorganized,  and 
was  attached  to  Howard  county  for  j.udicial  purposes ;  but  subsequent- 
ly, on  the  20th  day  of  March,  1906,  and  prior  to  the  institution  of  this 
suit,  it  was  duly  organized  in  conformity  with  the  requirements  of 
law.  On  the  9th  day  of  January,  1903,  Tomlinson,  the  defendant  in 
the  above-described  judgment,  filed  his  application  to  purchase  from 
the  state  four  sections  of  school  land  situated  in  Dawson  county,  a 
part  ol  which  is  the  land  involved  in  this  suit.  On  the  21st  day  of 
January  thereafter  his  application  was  approved,  and  the  land  award- 
ed to  him  by  the  Commissioner  of  the  General  Land  Office.  Tomlin- 
son resided  upon  that  part  of  the  land  so  purchased,  designated  as  the 
"home  section,"  in  compliance  with  the  requirements  of  law,  till  on  or 
about  the  24th  day  of  November,  1905.  Up  to  that  time  he  had  paid 
all  of  the  installments,  both  of  the  principal  and  interest,  as  they  be- 
came due.  On  that  date,  and  before  his  period  of  three  years'  occu- 
pancy required  by  the  laws  of  the  state  had  expired,  Tomlinson  sold  all 
of  the  interest  he  had  in  the  entire  four  sections  of  land  to  the  appellee, 
John  Robinson,  receiving  therefor  the  consideration  of  $5,500,  $2,000 
of  which  were  paid  in  cash.  After  his  purchase  from  Tomlinson,  ap- 
pellee continued  to  reside  upon  and  occupy  the  home  section,  in  com- 
pliance with  the  provisions  of  law,  until  the  period  of  three  years' 
occupancy  was  completed;  and  on  the  18th  day  of  January,  1906,  he 
proved  up  his  occupancy,  and  received  a  certificate  to  that  effect  from 
the  Land  Office,  and  the  four  sections  now  stand  on  the  records  of 
that  office  in  his  name.  The  judgment  against  Tomlinson  in  favor  of 
the  appellant  not  having  been  satisfied,  the  appellant,  on  the  9th  day  of 
March,  1907,  instituted  this  suit  in  the  district  court  of  Howard  coun- 
ty, seeking  to  foreclose  his  judgment  lien  on  a  part  of  the  land  which 
appellee  had  purchased  from  Tomlinson.  The  cause  was  tried  before 
the  court  without  a  jury,  resulting  in  a  judgment  in  favor  of  the  ap- 
pellee;  from  which  the  appellant  has  appealed. 

Appellant  relied  in  the  court  below  upon  the  validity  of  his  judg- 
ment lien  at  the  time  of  the  institution  of  this  suit,  and  the  further 
fact  that  the  land  purchased  from  Tomlinson  by  the  appellee  was  sub- 
ject to  the  lien  created  by  the  record  of  his  abstract.  The  appellee  con- 
tends that  the  appellant  failed  to  prove  that  execution  had  been  issued 
upon  his  judgment  within  a  year  after  its  rendition ;  and,  further,  that 
Tomlinson  did  not,  at  the  time  of  his  sale  to  Robinson,  own  such  an 
estate  or  interest  in  the  lands  as  was  subject  to  a  judgment  lien. 

It  is  provided  by  the  acts  of  Congress  that  judgments  and  decrees 
rendered  in  a  Circuit  or  District  Court  of  the  United  States  within  any 
state  shall  be  liens  on  property  throughout  such  state  in  the  same  man- 
ner and  to  the  same  extent,  and  under  the  same  conditions  only,  as  if 
such  judgments  and  decrees  had  been  rendered  by  a  court  of  general 


502  LIENS    OTHER    THAN    MORTGAGES 

jurisdiction  in  such  state.  4  Fed.  Stat.  Ann.  p.  4.  Our  statute  pro- 
vides that,  when  the  abstracts  of  judgments  rendered  in  any  of  the 
United  States  courts  shall  be  recorded  and  indexed  in  the  same  man- 
ner required  by  law  for  recording  and  indexing  abstracts  of  judgments 
rendered  in  state  courts,  they  shall  operate  as  liens  in  the  same  man- 
ner as  is  provided  for  judgments  of  state  courts.  Sayles'  Rev.  Civ. 
St.  1897,  art.  3293.  Article  3290  of  our  statute  also  provides  that, 
when  a  judgment  lien  has  been  acquired  under  the  laws  governing  the 
recording  of  abstracts  of  judgments,  it  shall  continue  for  10  years 
from  the  date  of  such  record  and  index,  unless  the  plaintiff  shall  fail 
to  have  execution  issued  upon  his  judgment  within  12  months  after 
the  rendition  thereof;  in  which  case  the  said  lien  shall  cease  to  exist. 
It  has  been  decided  by  our  Supreme  Court  that  in  order  to  establish 
the  existence  of  a  lien  the  burden  is  upon  the  plaintiff  to  prove  that  an 
e.xecution  has  been  issued  upon  his  judgment  within  12  months  after 
its  rendition.  Boyd  v.  Ghent,  95  Tex.  46,  64  S.  W.  929;  Schneider 
V.  Dorsey,  96  Tex.  544,  74  S.  W.  527. 

The  only  testimony  offered  by  the  appellant  tending  to  show  that  an 
execution  had  been  issued  upon  his  judgment  within  12  months  con- 
sisted of  the  entries  on  the  execution  docket  of  the  clerk  of  the  Cir- 
cuit Court  of  the  United  States  in  which  the  judgment  was  rendered. 
These  entries  consisted  of  dates  entered  under  an  orderly  arranged 
system  of  ruled  lines,  showing  date  of  issuance  of  execution  to  be  No- 
vember 16,  1901,  returnable  to  February  term,  1902.  There  was  no 
other  evidence  of  what  disposition  was  made  of  the  writ  after  it  had 
been  prepared  by  the  clerk — nothing  to  show  whether  or  not  it  had 
been  delivered  to  the  plaintiff  or  his  attorney,  or  to  the  marshal  of  the 
district.  Upon  this  testimony  alone  the  appellant  depends  to  establish 
the  fact  that  he  had  complied  with  the  law  requiring  executions  to  be 
issued  within  12  months  from  the  rendition  of  a  judgment  in  order  to 
prevent  its  becoming  dormant.  The  trial  court  held  that  it  was  insuf- 
ficient to  establish  that  fact,  and  we  are  asked  to  reverse  that  finding. 
If  the  mere  clerical  writing  out  and  attestation  of  the  writ  is  all  that 
is  required  to  "issue"  an  execution,  then  the  appellant  has  proven  the 
desired  fact;  but  such  is  not  the  law  regarding  the  use  of  that  term 
in  the  statute  relating  to  the  duty  imposed  upon  the  holders  of  judg- 
ments. The  term  "issue"  means  more  than  the  mere  clerical  prepara- 
tion and  attestation  of  the  writ,  and  requires  that  it  should  be  delivered 
to  an  officer  for  enforcement.  Schneider  v.  Dorsey,  supra ;  1  Free- 
man on  Execution,  §  9a ;  17  Ency.  of  Law  and  Procedure,  1033.  The 
law  requires  that,  when  an  execution  has  been  placed  in  the  hands  of 
a  sheriff,  he  shall  note  upon  it  the  hour  and  the  day  received,  and  shall, 
within  the  time  prescribed  by  the  execution,  make  due  return  of  what 
he  has  done,  in  compliance  with  the  requirements  of  the  writ. 

We  cannot,  in  the  face  of  the  record,  indulge  the  presumption  that 
the  clerk,  upon  the  preparation  and  attestation  of  the  writ,  delivered  it 
to  the  proper  officer.     The  law  does  not  require  him  to  do  that,  and 


JUDGMENT   LIENS  503 

hence  we  cannot  assume,  from  the  mere  entries  upon  his  record,  that 
he  has  done  more  than  what  was  required  of  him.  For  aught  that 
appears  to  the  contrary,  he  may  have  dehvered  the  writ  into  the  hands 
of  the  plaintiff  or  his  attorney  or  it  may  have  been  left  among  the 
papers,  and  lost  or  misplaced  without  ever  reaching  the  marshal.  If 
we  are  required  to  presume  one  fact  from  the  existence  of  another, 
the  presumption  would  naturally  be  against  such  a  thing  having  been 
done;  for,  if  he  had  delivered  it  to  the  proper  officer,  it  will  be  pre- 
sumed in  the  absence  of  evidence  to  the  contrary,  that  the  officer  to 
whom  it  was  delivered  would  have  done  his  duty  and  made  some  re- 
turn upon  the  writ  showing  what  official  action  he  had  taken  there- 
under. In  the  case  of  Schneider  v.  Dorsey,  supra,  it  was  distinctly  de- 
cided that  in  order  to  be  a  compliance  with  the  statute  the  writ  must 
be  placed  in  the  hands  of  the  officer  whose  duty  it  is  to  execute  it;  and, 
until  this. is  done,  there  has  been  no  sufficient  compliance  with  the  law 
requiring  executions  to  be  issued  within  a  year  from  the  rendition  of 
the  judgment  in  order  to  preserve  its  validity.  The  issue  as  to  whether 
or  not  an  execution  had  been  issued,  as  required  by  law,  being  one  of 
fact,  and  having  been  decided  adversely  to  the  appellant  in  the  court 
below,  we  do  not  think  the  evidence  contained  in  the  statement  of 
facts  would  justify  us  in  setting  that  finding  aside. 

But  if  we  should  be  in  error  in  disposing  of  the  case  in  the  man- 
ner we  have  upon  that  issue,  there  is  still  another  cogent  reason  why 
the  judgment  of  the  court  below  should  be  affirmed.  The  facts  show 
that  the  only  claim  to  the  land  in  controversy  ever  asserted  by  Tom- 
linson  was  that  of  a  purchaser  as  an  actual  settler,  from  the  state,  the 
land  being  a  part  of  the  public  school  fund,  and  that  he  parted  with 
that  claim  to  the  appellee,  Robinson,  before  he  had  completed  the 
three-years  occupancy  required  by  law.  From  these  facts  it  seems 
that  Tomlinson  never  owned  such  an  interest  in  the  land  as  would  be 
the  subject  of  a  judgment  lien.  That  property  of  a  defendant  which 
is  subject  to  a  judgment  duly  abstracted,  recorded,  and  indexed,  in 
the  manner  required  to  fix  a  judgment  lien  under  our  law,  is  describ- 
ed as  being  "all  of  the  real  estate  of  the  defendant."  The  terms  "real 
estate,"  as  used  in  this  article,  mean  something  more  than  a  mere  chat- 
tel interest  in  land — more  than  a  simple  contract  right  to  perform  con- 
ditions, aside  from  the  payment  of  the  purchase  price — and  demand 
a  conveyance  of  the  title.  They  import  a  freehold  interest,  either  an 
estate  for  life,  or  in  fee  simple.  Scogin  v.  Perry,  32  Tex.  21 ;  Har- 
rington V.  Sharp,  1  G.  Greene  (Iowa)  131,  48  Am.  Dec.  365.  The 
last  case  cited  above  was  decided  by  the  Supreme  Court  of  Iowa  in  the 
construction  of  language  almost  exactly  the  same  as  that  used  in  our 
statute.  The  court  said :  "By  the  language  'real  estate  of  the  person,' 
we  understand  that  the  fee  simple,  or  estate  of  inheritance,  must  be 
in  the  person  in  order  to  have  the  judgment  against  him  operate  as  a 
lien  upon  the  land.  A  mere  pre-emption  right  confers  no  such  fee 
or  estate  upon  the  person.     It  is  but  a  temporary  and  conditional  in- 


504  LIENS    OTHER   THAN    MORTGAGES 

terest  unknown  to  the  common  law.  It  only  imparts  to  the  pre-emptor 
a  right  over  others  to  purchase  the  land  within  a  limited  period,  at  a 
stipulated  price,  and  if  he  fails  to  pay  the  price  within  the  time  re- 
quired the  right  ceases.  It  is  of  a  nature  no  greater  than  an  estate 
for  years — a  mere  equitable  and  contingent  interest." 

We  think  the  reasoning  quoted  is  applicable  to  the  facts  here  involv- 
ed— perhaps  with  stronger  force.  In  that  case  the  only  contingency 
mentioned  was  the  payment  of  the  purchase  price ;  while  in  the 
case  at  bar  there  is  the  other  condition  of  occupancy  involved.  The 
rights  of  a  purchaser  of  school  land  prior  to  the  completion  of  the 
three-years  occupancy  are  no  better  than  those  of  a  pre-emptor.  He 
holds  possession  under  a  contract  which  contemplates  title  only  upon 
the  performance  by  him  of  certain  conditions  independent  of  the  pay- 
ment of  the  purchase  money.  Besson  v.  Richards,  24  Tex.  Civ.  App. 
64,  58  S.  W.  612.  The  right  thus  held  is  not  subject  to  seizure  and 
sale  under  any  judicial  proceedings.  Williams  v.  Finley,  99  Tex.  468, 
90  S.  W.  1088;  Martin  v.  Bryson,  31  Tex.  Civ.  App.  98.  71  S.  W. 
615;  Gaston  v.  Mar.  Imp.  Co.,  139  Ala.  465,  36  South.  738.  In  the 
case  of  Williams  v.  Finley  the  Supreme  Court  said :  "The  state  sells 
the  land  partly  because  of  the  qualification  and  status  of  the  purchaser 
as  an  actual  settler.  Because  of  this,  it  asserts  its  right  to  sell,  and 
his  to  buy,  under  such  arrangements  as  that  stated.  To  carry  out  the 
policy  of  the  law  the  state  has  the  right  to  insist  upon  the  maintenance 
of  its  conti'act  and  of  the  relation  created  by  it.  A  judgment  such  as 
that  rendered  below  would  tend  to  the  destruction  of  both.  By  selling 
out  the  settler's  title  at  judicial  sale,  and  putting  the  purchaser  thereat* 
in  possession,  it  would  destroy  the  occupancy  of  the  settler — the  con- 
dition on  the  maintenance  of  which  the  title  depends — and  could  not 
at  the  same  time  require  the  purchaser  at  the  judicial  sale  to  perform 
it.  If  it  be  said  that  only  by  performance  could  he  obtain  the  benefit 
of  the  purchase  from  the  state,  the  answer  is  twofold:  (1)  There  is 
no  provision  for  the  substitution  of  such  a  purchaser  for  the  original 
one ;  and  (2)  performance  would  at  best  be  optional  with  him,  and  the 
rights  intended  to  be  secured  by  the  law  to  the  state  would  be  depend- 
ent on  his  will.  Many  persons  who  might  bid  at  such  sales  would  be 
wholly  disqualified  under  the  law  to  hold  these  lands  as  purchasers." 
The  absence  of  the  right  of  foreclosure  of  a  noncontract  lien  by  a 
judicial  sale  is  striking  evidence  of  the  entire  absence  of  lien  which 
must  depend  upon  such  foreclosure  for  its  enforcement.  The  law 
does  not  give  a  lien  which  cannot  be  enforced  at  any  time  after 
the  obligation  becomes  due,  subject  to  such  other  rights  as  may  be 
superior  thereto.  The  refusal  to  permit  a  judicial  foreclosure  and  sale 
of  the  land  in  such  cases  as  the  one  now  under  consideration  is  based 
upon  the  personal  conditions  imposed  by  law,  and  the  relations  estab- 
lished between  the  parties  by  the  terms  of  the  contract.  The  policy  of 
the  state  in  the  disposition  of  its  school  lands  is  to  sell  to  those  only 
who  will  actually  settle  upon  and  occupy  them  as  homes. 


JUDGMENT   LIENS  505 

In  the  case  before  us  it  is  not  claimed  that  TomHnson  acquired  from 
the  state  the  legal  title  to  the  land,  but  that  he  was  vested,  by  virtue 
of  his  contract  of  purchase  with  an  equity  that  became  subject  to  the 
judgment  lien  while  he  was  in  possession  of  the  lands.  In  order 
for  this  equity  to  attain  the  dignity  of  "real  estate,"  as  used  in  the 
statute,  it  must  amount  to  a  freehold  interest.  A  freehold  is  an  estate 
for  life,  or  in  fee  simple.  1  Washburn,  Real  Prop.  41,  42.  That  no 
mere  life  estate  was  contemplated  in  the  contract  with  the  state  is 
made  evident  from  the  legal  requirements  as  to  the  conveyance  that 
shall  be  made  upon  the  ultimate  compliance  by  the  purchaser  with 
the  conditions  of  the  sale.  The  law  provides  for  a  fee-simple  con- 
veyance in  such  an  event;  hence,  it  follows  that  whatever  fee,  if 
any,  became  vested  in  Tomlinson  by  virtue  of  his  contract  of  pur- 
chase from  the  state  was  a  fee  simple,  subject  only  to  the  prior  right 
of  the  state  to  enforce  the  conditions  imposed  by  the  terms  of  the 
contract.  One  of  the  essential  qualities  of  a  fee-simple  estate  is  that 
it  is  one  of  inheritance — one  which  passes,  upon  the  death  of  the  an- 
cestor, to  all  the  heirs  generally,  and  not  to  a  particular  heir  or  set  of 
heirs.  11  Am.  &  Eng.  Ency.  Law,  366;  16  Cyc.  602;  Black's  Law 
Diet.  520. 

Had  Tomlinson  died  while  in  possession  of  the  land,  and  before 
he  had  completed  the  three  years  of  occupancy,  the  interest  which  he 
at  that  time  owned  would  not  have  passed  to  his  heirs  generally,  but 
would  have  been  forfeited  to  the  state,  unless  some  particular  heirs, 
not  disqualified  under  the  law,  should  enter  into  a  new  obligation  with 
the  state  to  carry  out  the  terms  of  the  purchase  and  continue  to 
reside  on  the  land.  In  order  to  avail  themselves  of  the  occupancy 
and  payments  made  by  Tomlinson  such  heirs  must  make  the  affidavit 
required  by  law,  and  enter  into  the  obligation  to  pay  the  remainder 
of  the  purchase  price ;  and  by  virtue  of  this  contract  and  the  terms  of 
the  statute,  and  not  by  right  of  inheritance  from  Tomlinson,  is  the 
right  acquired  to  obtain  a  patent  to  the  land.  Again  it  is  only  by 
virtue  of  the  permission  of  the  statute  that  the  purchaser  of  school 
lands  may  assign  his  interest  to  another.  A  freehold  estate  is  assign- 
able by  virtue  of  the  rights  acquired  under  the  conveyance  resulting 
from  the  nature  of  the  estate,  and  does  not  rest  upon  permission  from 
the  grantor  given  independently.  After  the  completion  of  the  three 
years  of  occupancy  the  rights  of  the  purchaser  of  school  land  be- 
come much  enlarged  by  his  having  complied  with  the  conditions  of  the 
sale,  other  than  the  payment  of  the  price,  imposed  by  law.  He,  or  his 
vendee,  can  then  pay  the  entire  balance  due  the  state,  and  secure  a 
fee-simple  title  to  the  laod.  Until  then,  he  has  nothing  more  than  a 
chattel  interest,  and,  consequently,  not  such  an  estate  as  becomes  sub- 
ject to  a  judgment  lien. 

Appellant  cites  us  to  the  case  of  Harwell  v.  Harbison,  43  Tex.  Civ. 
App.  343,  95  S.  W.  30,  decided  by  the  Court  of  Civil  Appeals  of  the 
Second  District.     It  was  there  held  that  there  was  no  reason  in  law 


506  LIENS    OTHER   THAN    MORTGAGES 

why  a  purchaser  of  school  lands  should  not  be  permitted  to  mort- 
gage the  lands  before,  as  well  as  after,  he  had  completed  the  three 
years  of  occupancy.  It  is  said  that  if  the  mortgagee  is  willing  to 
wait  till  the  requisite  occupancy  is  completed,  before  foreclosing  his 
mortgage,  and  to  take  the  chances  of  the  mortgagor  complying  with 
the  conditions  of  the  sale  no  one  else  ought  to  complain.  Admitting 
the  correctness  of  that  ruling  as  applied  to  the  facts  of  the  case  then 
before  the  court,  it  is  far  from  being  a  precedent  for  the  determination 
of  this.  Parties  may  enter  into  such  contracts  as  they  may  see  fit, 
when  not  in  violation  of  some  established  rules  of  law,  and  may  cre- 
ate such  rights  or  liens  as  they  see  proper,  which  may  depend  for 
their  enforcement  upon  conditions  other  than  the  maturity  and  nonpay- 
ment of  the  debt  sought  to  be  secured.  As  a  general  rule,  any  spe- 
cies of  property  which  may  be  sold  or  conveyed  may  also,  in  the  ab- 
sence of  some  legal  inhibition,  be  mortgaged,  or  conveyed  in  trust,  to 
secure  a  debt.  Many  interests  in  prassenti,  or  in  expectancy,  may  be 
the  subject  of  conveyances  which  could  not  be  seized  under  any  legal 
process,  or  subjected  to  a  judicial  sale.  A  crop  may  be  mortgaged 
before  it  is  planted,  but  it  is  not.  then  subject  to  be  seized  under  ex- 
ecution, nor  would  the  lien  then  created,  if  done  in  good  faith  to  se- 
cure a  contemporaneous  debt,  be  considered  in  fraud  of  prior  ex- 
isting creditors  of  the  mortgagor.  The  right  of  foreclosure  in  such 
cases  would  be  postponed  till  such  times  as  the  crops  assumed  the 
form  of  tangible  personal  property. 

The  grounds  upon  which  a  mortgage  will  be  sustained  when  given 
upon  property  not  then  in  existence,  or  property  in  existence  not  then 
owned,  but  afterward  acquired,  by  the  mortgagor,  are  upon  the  prin- 
ciples of  equity  and  estoppel.  1  Jones  on  Mort.  §§  151,  152.  If  there 
is  a  potential  right  existing  in  one  to  acquire  certain  articles  or  spe- 
cies of  property,  a  valid  mortgage  may  be  given  in  advance  of  the 
acquisition.  Richardson  v.  Washington,  88  Tex.  344,  31  S.  W.  614. 
One  who  buys  the  right  of  the  mortgagor  with  actual  knowledge 
of  the  lien  given  by  him  is  estopped,  equally  with  the  original  mort- 
gagor, to  assert  that  the  lien  is  not  binding  upon  the  property,  although 
the  property  upon  which  the  lien  is  given  was  not  in  existence  at  the 
time  the  mortgage  was  executed.  A  prospective  heir  may  sell  or 
mortgage  his  expectancy  in  the  estate  of  his  ancestor  during  the  lat- 
ter's  lifetime.  Hale  v.  Hollon,  90  Tex.  427,  39  S.  W.  287,  36  L.  R.  A. 
75,  59  Am.  St.  Rep.  819;  Bryan  v.  Sturgis  Nat.  Bank,  40  Tex.  Civ. 
App.  307,  90  S.  W.  705.  But  this  expectancy,. even  though  it  be  based 
upon  the  real  estate  of  the  ancestor,  could  not  be  subjected  to  a  judg- 
ment lien  against  the  heir  till  the  title  actually  vested.  If  the  heir 
should  sell  the  expectancy  before  descent  cast,  the  holder  of  a  judg- 
ment lien  could  not  then  subject  the  property  in  the  hands  of  the  pur- 
chaser to  the  satisfaction  of  his  debt.  Hale  v.  Hollon,  supra.  In  the 
case  of  Harwell  v.  Harbison,  supra,  the  vendee  of  the  purchaser  took 
the  land  with  the  knowledge  that  a  mortgage  had  been  given  by  his 


V  JUDGMENT   LIENS  507 

vendor.  There  was  at  the  time  of  the  creation  of  the  mortgage  a  po- 
tential right  in  the  mortgagor  to  acquire  the  property  by  complying 
with  the  terms  of  his  purchase.  By  reason  of  that  fact  he  could  cre- 
ate a  valid  lien  upon  it  to  be  subject  to  foreclosure  when  his  title  be- 
came perfect.  His  vendee,  having  actual  knowledge  of  the  existence 
•of  this  lien,  was  in  no  attitude  to  deny  its  validity,  or  its  superiority 
•over  his  title. 

By  disposing  of  the  lands  involved  in  this  suit,  before  he  acquired 
a  freehold  interest,  Tomlinson  effectually  prevented  the  lien  of  the  ap- 
pellant from  attaching.  If  it  did  not  attach  in  his  hands,  it  could  not 
afterward  do  so  while  in  the  hands  of  a  stranger  to  the  judgment. 
When  the  appellee  purchased  from  Tomlinson,  he  took  the  lands  un- 
incumbered by  the  lien. 

There  being  no  error,  the  judgment  of  the  district  court  is  affirmed. 


VAUGHN  V.  SCHMALSLE. 

(Supreme  Court  of  Montana,  1890.     10  Mont.  186,  25  Pac. 
102,  10  L.  R.  A.  411.) 

■  Appeal  from  district  court,  Custer  county;  George  R.  Milburn, 
Judge. 

Harwood,  J.^  In  this  appeal  two  questions  of  law  are  to  be  deter- 
mined :  First.  A  question  of  priority  and  relative  legal  effect  of  a 
judgment  lien  on  real  estate,  and  title  acquired  at  execution  sale  there- 
under, as  against  a  mortgage  executed  and  delivered  prior  to  docket- 
ing of  the  judgment,  but  not  recorded  until  after  the  judgment  was 
■docketed,  and  levy  made  under  execution.  Second.  A  question  as  to 
the  sufficiency  of  description  of  a  portion  of  the  real  estate  mentioned 
in  the  mortgage.  These  questions  will  be  considered  in  the  order 
stated. 

This  appeal  is  from  the  judgment  of  the  trial  court,  and  we  find 
in  the  judgment  roll  an  exception  to  the  conclusions  of  law  found 
by  the  court,  on  the  ground  that  the  same  are  not  supported  by  the 
facts,  as  found  by  the  court.  The  facts  bearing  upon  the  first  point 
of  controversy,  as  found  by  the  court,  are  as  follows:  March  1,  1886, 
plaintiff'  loaned  to  J.  F.  Schmalsle  $700,  payable  12  months  after  date, 
with  interest  at  the  rate  of  24  per  c6iit.,  per  annum,  for  which  said 
J.  F.  Schmalsle  made  and  delivered  to  plaintiff  a  promissory  note  and 
a  mortgage,  to  secure  the  same,  principal  and  interest,  and  $25  attor- 
ney's fees,  on  certain  described  lots  of  land  situate  in  Miles  City, 
county  of  Custer,  which  mortgage  was  filed  for  record  in  tlie  office 
of  the  county  clerk  and  recorder  of  said  county,  April  5,  1886.  On 
the  11th  day  of  March,  1886,  judgment  was  rendered  and  docketed 
against  said  mortgagor,  in  the  district  court  in  and  for  said  county. 

8  Part  of  the  opinion  is  omitted. 


508  LIENS    OTHER   THAN    MORTGAGES 

for  the  recovery  of  the  sum  of  $1,500  in  favor  of  William  F.  Schmalsle, 
one  of  the  defendants  in  this  action;  that  execution  was  duly  issued 
on  said  judgment  on  March  19,  1886,  under  which  execution  the  sheriff 
levied  on  the  same  real  estate  mentioned  in  said  mortgage,  and  there- 
after, on  the  9th  day  of  April,  1886,  sold  said  real  estate  under  said 
levy  to  William  F.  Schmalsle,  for  $1,100;  that  when  such  purchase 
was  made  the  purchaser,  William  F.  Schmalsle,  had  actual  notice  of 
the  existence  of  the  plaintiff's  mortgage  as  well  as  constructive  notice 
by  the  record  thereof ;  that  on  the  9th  day  of  October,  1886,  the  sheriff 
executed  to  William  F.  Schmalsle  a  deed  conveying  to  him  said  proper- 
ty as  sold  under  said  execution,  which  deed  was  filed  for  record  Octo- 
ber 20,  1886.  Upon  this  state  of  facts  the  court  found  as  a  conclusion 
of  law  that  the  judgment  lien  was  paramount  to  the  mortgage,  and 
that  the  mortgage,  could  not  be  "enforced  against  said  property  so 
levied  upon  to  the  exclusion  of  the  said  judgment  or  in  priority  there- 
to." So  holding,  the  court  denied  the  plaintiff  a  decree  of  foreclosure 
of  her  mortgage  on  said  premises,  and  rendered  judgment  against  her 
in  favor  of  defendants  William  F.  Schmalsle  and  Nelson  A.  Miles, 
from  which  judgment  plaintiff  appealed. 

The  question  involved  herein  as  to  the  relative  force  of  a  judgment 
lien,  and  a  mortgage  made  and  delivered  prior  to  docketing  of  the  judg- 
ment, but  not  recorded  until  after  such  docketing  and  levy  of  execu- 
tion, must  be  solved  by  a  consideration  of  the  statute  relating  to  the 
judgment  lien  and  execution,  and  the  statute  providing  for  the  convey- 
ance of  real  estate  or  interest  therein,  and  the  effect  of  recording  such 
conveyances  or  withholding  the  same  from  record.  The  statute  fixing 
the  judgment  lien  is  found  in  section  307,  Code  Civil  Proc,  which  pro- 
vides: "Immediately  after  filing  a  judgment  roll  the  clerk  shall  make 
proper  entries  of  the  judgment,  under  appropriate  heads,  or  in  the 
docket  kept  by  him;  and  from  the  time  the  judgment  is  docketed  it 
shall  become  a  lien  upon  the  real  property  of  the  judgment  debtor, 
not  exempt  from  execution,  in  the  county,  owned  by  him  at  the  time, 
or  which  he  may  afterwards  acquire,  until  said  lien  expires.  The  lien 
shall  continue  for  six  years  unless  the  judgment  be  previously  satis- 
fied." The  judgment  lien  here  established  by  statute  takes  effect  upon 
"the  real  property  of  the  judgment  debtor,  not  exempt  from  execu- 
tion, in  the  county,  owned  by  him  at  the  time,"  or  thereafter  acquired. 
So,  in  section  313,  Code  Civil  Proc,  where  the  execution  is  provided 
for,  the  sheriff  is  required  first  to  satisfy  the  judgment  out  of  the  per- 
sonal property  of  the  debtor,  or,  "if  suf^cient  personal  property  cannot 
be  found,  then  out  of  his  real  property;  or,  if  the  judgment  be  a  lien 
upon  real  property,  then  out  of  the  real  property  belonging  to  him,  on 
the  day  when  judgment  was  docketed  or  at  any  time  thereafter."  In 
Rodgers  v.  Bonner,  45  N.  Y.  379,  the  court  says:  "A  judgment  is  not 
a  specific  lien  on  any  particular  real  estate  of  the  judgment  debtor,  but 
a  general  lien  upon  all  his  real  estate,  subject  to  all  prior  Hens,  either 


JUDGMENT   LIENS  50& 

legal  or  equitable,  irrespective  of  any  knowledge  of  the  judgment  cred- 
itor as  to  the  existence  of  such  liens."  See,  also,  School-District  v. 
Werner,  43  Iowa,  643. 

In  the  case  of  Conard  v.  Insurance  Co.,  1  Pet.  442,  7  L.  Ed.  189, 
Mr.  Justice  Story,  announcing  the  decision  of  the  court,  says:  "Now 
it  is  not  understood  that  a  general  lien  by  judgment  on  land  constitutes, 
per  se,  a  property  or  right  in  the  land  itself.  It  only  confers  a  right 
to  levy  on  the  same,  to  the  exclusion  of  other  adverse  interest,  subse- 
quent to  the  judgment;  and  when  the  levy  is  actually  made  on  the 
same,  the  title  of  the  creditor,  for  this  purpose,  relates  back  to  the  time 
of  his  judgment,  so  as  to  cut  out  intermediate  incumbrances."  In 
Brown  v.  Pierce,  7  Wall.  205,  19  L.  Ed.  134,  Mr.  Justice  Clifford, 
speaking  for  the  court,  declares  the  extent  and  effect  of  a  judgment 
lien  as  follows :  "Judgments  were  not  liens  at  common  law.  *  *  * 
Different  regulations,  however,  prevailed  in  different  states,  and  in 
some  neither  a  judgment  nor  a  decree  for  the  payment  of  money, 
except  in  cases  of  attachment  or  mesne  process,  created  any  prefer- 
ence in  favor  of  the  creditor,  until  the  execution  was  issued  and  had 
been  levied  on  the  land.  Where  the  lien  is  recognized,  it  confers  a 
right  to  levy  on  the  land  to  the  exclusion  of  other  adverse  interests 
acquired  subsequently  to  the  judgment;  but  the  lien  constitutes  no 
property  or  right  in  the  land  itself.  *  *  *  Express  decision  of  this 
court  is  that  the  lien  of  a  judgment  constitutes  no  property  in  the 
land;  that  it  is  merely  a  general  lien  securing  a  preference  over  sub- 
sequently acquired  interests  in  the  property ;  but  the  settled  rule  in 
chancery  is  that  a  general  rule  is  controlled  in  such  courts  so  as  to  pro- 
tect the  rights  of  those  who  were  previously  entitled  to  an  equitable 
interest  in  the  lands,  or  in  the  proceeds  thereof.  Specific  liens  stand 
on  a  dift'erent  footing,  but  it  is  well  settled  that  a  judgment  creates 
only  a  general  lien,  and  that  the  judgment  creditor  acquires  thereby  no 
higher  or  better  right  to  the  property  or  assets  of  the  debtor,  than  the 
debtor  himself  had  when  the  judgment  was  rendered,  unless  he  can 
show  some  fraud  or  collusion  to  impair  his  rights.  Correct  statement 
of  the  rule  is  that  the  lien  of  a  judgment  creates  a  preference  over  sub- 
sequently acquired  rights,  but  in  equity  it  does  not  attach  to  the  mere 
legal  title  to  the  land,  as  existing  in  the  defendant  at  its  rendition,  to 
the  exclusion  of  a  prior  equitable  title  in  a  third  person.  Guided  by 
these  considerations,  the  court  of  chancery  will  protect  the  equitable 
right  of  third  persons  against  the  legal  lien,  and  will  limit  that  lien 
to  the  actual  interest  which  the  judgment  debtor  had  in  the  estate 
at  the  time  the  judgment  was  rendered."  In  re  Howe,  1  Paige  (N.  Y.) 
125,  19  Am.  Dec.  395;  Ells  v.  Tousley,  1  Paige  (N.  Y.)  280;  Keirsted 
V.  Avery,  4  Paige  (N.  Y.)  15;  Lounsbury  v.  Purdy,  11  Barb.  (N.  Y.) 
490;  Averill  v.  Loucks,  6  Barb.  (N.  Y.)  20.  These  eminent  authorities 
are  cited  and  quoted  from  as  forcibly  expressing  the  legal  effect  of 
a  judgment  lien  generally.     The  correctness  of  the  views  expressed 


510  LIENS    OTHER   THAN    MORTGAGES 

is  not  questioned,  so  far  as  we  are  aware,  throughout  the  whole  range 
of  authorities  on  this  subject. 

Notwithstanding  these  doctrines,  if  there  is  any  provision  in  our 
statutes  which  changes  the  relative  force  of  the  judgment  lien  in  the 
case  at  bar,  as  against  the  prior  acquired  mortgage,  then  the  latter 
must  be  postponed  to  the  former,  as  held  by  the  trial  court.  It  is  in- 
sisted by  counsel  for  respondent  that  a  mortgage  executed  upon  land 
in  this  state  should  not  be  regarded  as  a  conveyance  in  the  sense  that 
applied  to  a  mortgage  at  common  law ;  that  a  mortgage  on  land,  as 
known  to  our  statute  is  a  mere  lien  to  secure  the  payment  of  money, 
and  not  a  conveyance,  as  known  to  the  common  law.  In  support  of 
this  position,  section  371,  of  the  Code  of  Civil  Procedure  is  cited,  which 
provides  as  follows :  "A  mortgage  of  real  property  shall  not  be  deem- 
ed a  conveyance,  whatever  its  terms,  so  as  to  enable  the  owner  of 
the  mortgage  to  recover  possession  of  the  real  property  without  fore- 
closure and  sale."  It  is  urged  that  this  provision  radically  changes  the 
character  of  a  mortgage  in  this  state  from  that  incidental  to  a  mort- 
gage at  common  law,  making  the  mortgage  here  simply  a  lien  on  land 
to  secure  the  payment  of  money  or  the  fulfillment  of  an  obligation, 
which  lien  attaches  at  the  time  of  the  filing  of  the  mortgage  for  record, 
and  not  before.  It  is  true  that  this  provision  of  statute  modifies  the 
conditions  of  a  mortgage  in  this  jurisdiction  to  the  extent  of  with- 
holding from  the  mortgagee  the  right  of  possession  of  the  mortgaged 
premises,  upon  the  breach  of  the  conditions  of  the  mortgage,  without 
first  a  foreclosure  and  sale.  Nevertheless,  a  mortgage  by  our  statute 
is  declared  to  be  a  conveyance.  Chapter  20,  div.  5,  of  our  statutes,  pro- 
vides the  manner  by  which  "conveyances  of  land  or  any  estate  or  in- 
terest therein,  may  be  made  by  deed  signed  by  the  persons  from  whom 
the  estate  or  interest  is  intended  to  pass ;"  and  section  270  of  that  chap- 
ter provides :  "The  term  'conveyance,'  as  used  in  this  chapter,  shall 
be  construed  to  embrace  every  instrument  in  writing  by  which  any 
real  estate,  or  interest  in  real  estate,  is  created,  alienated,  mortgaged, 
or  assigned,  except  wills,  leases  for  a  term  not  exceeding  one  year,  and 
executory  contracts  for  the  sale  or  purchase  of  lands." 

The  mortgage  in  the  case  at  bar  is  shqwn  to  have  been  executed  in 
the  manner  provided  in  said  chapter,  for  the  execution  of  "conveyanc- 
es of  land,  or  any  interest  therein,"  and  this  mortgage  is  to  be  deemed 
a  conveyance  in  the  meaning  of  that  term,  as  used  in  that  chapter.  By 
section  258  of  said  chapter,  this  conveyance  is  declared  to  be  valid 
and  binding,  as  between  the  parties  thereto,  without  recording.  Now, 
if  that  was  a  valid  and  binding  conveyance  of  an  equitable  interest  in 
said  land,  as  between  the  plaintiff  and  her  mortgagor,  the  mortgage 
interest  had  been  eft'ectually  conveyed  away  prior  to  the  attaching  of 
the  judgment  lien  on  said  land.  In  view  of  the  doctrine  held  by  the 
authorities  cited,  supra,  the  lien  of  the  judgment,  docketed  subsequent 
to  the  conveyance  of  the  mortgage  interest,  must  have  been  subject 


JUDGMENT   LIENS  511 

to  it.  This  would  be  so,  not  only  in  consequence  of  general  principles 
of  law,  but  strictly  by  the  provisions  of  statute.  The  statute  establish- 
ing the  judgment  lien,  as  before  noticed,  fixes  the  lien  on  the  real  es- 
tate owned  by  the  judgment  debtor  in  the  county  at  the  time  of  docket- 
ing the  judgment  or  afterwards  acquired.  Hence,  if  a  valid  and  bind- 
ing conveyance  of  an  interest  has  been  made  by  the  debtor  prior  to 
the  docketing  of  the  judgment,  then  he  did  not  own  the  interest  so 
conveyed  at  the  time  of  docketing  the  judgment,  and  the  lien  thereof 
could  not  attach  to  that  which  the  judgment  debtor  did  not  own. 

It  cannot  be  maintained  that  the  failure  to  record  a  mortgage  de- 
feats it,  or  postpones  it  to  the  lien  of  a  judgment  creditor,  unless 
such  failure  continues  until  after  sale  under  execution  and  purchase 
by  one  in  good  faith  without  notice.  By  section  259  of  the  chapter 
cited,  supra,  it  is  provided  that  the  filing  of  the  instrument  of  convey- 
ance "shall  impart  notice  to  all  persons  of  the  contents  thereof,  and 
subsequent  purchasers  and  mortgagees  shall  be  deemed  to  purchase 
and  take  with  notice."  And,  again,  in  section  260  of  the  same  chapter, 
it  is  provided  that  "every  conveyance  of  real  estate  within  this  state, 
which  shall  not  be  recorded,  as  provided  for  in  this  chapter,  shall  be 
deemed  void  as  against  any  subsequent  purchasers  in  good  faith,  and 
for  a  valuable  consideration  of  the  same  real  estate  or  any  portion 
thereof,  where  his  own  conveyance  shall  be  first  duly  recorded."  Nei- 
ther these  provisions  nor  any  others  found  in  the  statute  include 
judgment  creditors  so  as  to  make  the  unrecorded  mortgage  void  as 
against  a  judgment  lien.  This  proposition  is  supported  by  numerous 
authorities  where  the  statutory  provisions  are  similar  to  those  existing 
in  this  state.  Wilcoxson  v.  Miller,  49  Cal.  193;  Hunter  v.  Watson, 
12  Cal.  363,  7Z  Am.  Dec.  543;  Packard  v.  Johnson,  51  Cal.  545;  Gal- 
land  v.  Jackman,  26  Cal.  80,  85  Am.  Dec.  172;  Pixley  v.  Huggins, 
15  Cal.  128;  Thomas  v.  Vanlieu,  28  Cal.  617;  Davis  v.  Owenby,  14 
Mo.  170,  55  Am.  Dec.  105 ;  Valentine  v.  Havener,  20  Mo.  133 ;  Holden 
V.  Garrett,  23  Kan.  98 ;  Knell  v.  Association,  34  Md.  67 ;  Ells  v.  Tous- 
ley,  supra;  Hackett  v.  Callender,  32  Vt.  97;  Hart  v.  Bank,  33  Vt. 
252 ;  Norton  v.  Williams,  9  low^a,  528. 

Contrary  to  the  authorities  cited  supra,  our  attention  is  called  to 
an  observation  of  Mr.  Freeman  in  his  work  on  Judgments  (3d  Ed., 
§  366)  to  the  following  effect:  "In  some  states  the  registry  laws  so 
modify  the  effect  of  conveyances,  and  other  instruments  concerning 
real  estate,  as  to  give  a  judgment  lien  precedence  over  an  unrecorded 
instrument  of  which  the  judgment  creditor  had  no  knowledge  at  the 
date  of  the  attaching  of  the  lien  of  his  judgment."  Also,  note  1  to 
this  observation,  in  which  the  author  says:  "The  tendency  of  recent 
statutes,  and  the  decisions  interpreting  them,  is  to  give  a  judgment 
lien  precedence  over  a  prior  unregistered  conveyance  or  incumbrance, 
especially  if  the  plaintiff  had  no  notice  of  it  when  his  judgment  was 
docketed  or  registered  or  the  levy  of  the  writ  made."    In  this  connec- 


512  LIENS    OTHER   THAN    MORTGAGES 

tion  respondent  cites  cases  decided  in  the  courts  of  last  resort,  in  the 
states  of  Texas,  Virginia,  West  Virginia,  and  Georgia.  To  these 
citations  might  have  been  added  cases  decided  in  Massachusetts,  Ohio, 
Illinois,  Pennsylvania,  and,  perhaps,  other  states.  But,  on  examina- 
tion of  these  decisions,  and  the  statutes  under  which  the  same  were 
made,  we  find  provisions  differing  radically  from  those  of  our  own 
state.  In  the  states  mentioned,  the  courts  were  confronted  by  statu- 
tory provisions  which  gave  precedence  to  a  judgment  lien,  as  remarked 
by  Mr.  Freeman,  either  expressly  or  by  fair  implication,  and  the  courts 
where  these  decisions  are  found  were  interpreting  such  statutes. 

The  weight  of  these  citations  rather  tends  to  confirm  us  in  the  opin- 
ion that,  under  our  statute,  we  could  not  fairly  construe  a  judgment 
creditor's  lien  to  be  paramount  to  a  bona  fide  mortgage,  although  not 
recorded  at  the  time  the  judgment  was  docketed.  It  requires  the 
force  of  statute  to  make  a  valid  and  binding  unrecorded  mortgage  void 
as  to  the  judgment  creditor's  lien  in  like  manner  as  it  requires  statutory 
provisions  to  make  an  unrecorded  deed  or  mortgage  void  as  to  sub- 
sequent purchasers  or  mortgagees.  It  has  been  held  in  Chumasero  v. 
Vial,  3  Mont.  376,  that  the  purchaser  at  execution  sale  is  governed 
by  the  rule  caveat  emptor,  and  that  if  the  judgment  debtor  was  holding 
the  legal  title  to  real  estate  in  trust  for  another,  and  such  property 
was  sold  under  execution  against  the  trustee,  in  that  case  the  purchaser 
acquired  no  title.  In  McAdow  v.  Black,  4  Mont.  475,  1  Pac.  751,  it 
is  held  that  "an  execution  creditor  takes  the  property  subject  to  any 
lien  or  equity  that  might  be  enforced  against  the  judgment  debtor." 
Is  it  not  an  irresistible  logical  conclusion  from  these  principles  that 
a  judgment  lien  attaches  to  the  real  estate  of  the  judgment  debtor  sub- 
ject to  any  equities  which  might  be  enforced  against  the  judgment 
debtor,  and  also  against  the  purchaser  under  the  execution  sale  with 
notice  of  such  equities?  We  are  of  opinion  that  the  court  erred  in 
concluding  that  the  mortgage  of  appellant  in  the  case  at  bar  was  in- 
ferior and  subject  to  the  judgment  lien  of  respondent,  or  the  title  of 
respondent  to  said  real  estate,  acquired  by  purchase  at  execution  sale 
under  said  judgment,  after  having  actual  as  well  as  constructive  no- 
tice of  respondent's  mortgage  on  said  premises.    *    *    *  * 

*  For  other  cases  holding  that  the  lien  of  a  judgment  will  not  hold  against 
prior  unrecorded  deeds  or  mortgages,  see  MpCalla  v.  Investment  Co.,  77  Kan. 
770,  94  Pac.  126,  14  L.  R.  A.  (N.  S.)  1258  (190S) ;  Trenton  Banking  Co.  v. 
Duncan,  86  N.  Y.  221  (1881).  The  decisions,  however,  are  conflicting;  some 
cases  holding  that  a  judgment  lien  takes  priority  to  such  unrecorded  claims 
in  absence  of  actual  notice.  See  Richards  v.  Stoiner  Bros..  166  Ala.  353,  52 
South.  200  (1910) ;   Gary  v.  Newton,  201  111.  170,  60  N.  E.  267  (1903). 


PART  IV 

THE  ACQUISITION  AND  TRANSFER  OF  REAL 

PROPERTY 


TITLE— IN  GENERAL 
L  Public  Grant  ^ 


UNITED  STATES  ex  rel.  McBRIDE  v.  SCHURZ. 
(Supreme  Court  of  United  States,  18S0.    102  U.  S.  378,  26  L.  Ed.  167.) 

Error  to  the  Supreme  Court  of  the  District  of  Columbia. 

This  is  a  petition  for  a  mandamus,  filed  in  the  Supreme  Court 
of  the  District  of  Columbia,  Oct.  11.  1879.  It  alleges  that  the  re- 
lator, Thomas  McBride,  was,  in  1862,  possessed  of  all  the  qualifica- 
tions necessary  to  entitle  him  to  pre-empt  one  hundred  and  sixty 
acres  of  the  public  lands  of  the  United  States ;  that  he,  in  that  year, 
settled  upon  a  tract  of  public  land  known  as  the  S.  %  of  the  N.  E.  %. 
and  lots  1  and  2  of  section  6,  T.  3,  S.  of  R.  5  W.,  situate  in  the 
county  of  Tooele  and  Territory  of  Utah,  containing  a  little  less  than 
one  hundred  and  sixty  acres,  with  intent  to  appropriate  it  under  the 
laws  of  the  United  States,  and  has  continuously  inhabited,  occupied, 
and  cultivated  it;  thatjie.  May  31,  1869,  in  due  form  and  time,  made, 
af  the  land  office  in  Salt  Lake  City,  a  homestead  entry  of  it ;  that 
he  occupied,  cultivated,  and  resided  upon  it  for  more  than  five  years 
thereafter,  and,  June  15,  1874,  made  due  proof  thereof,  paid  the  fees, 
and  received  a  final  certificate  therefor;  that  his  said  proofs  and  pa- 
}5ers  were  duly  forwarded  to  the  Commissioner  of  the  General  Land- 
Ofiice,  who  found  them  to  be  in  all  respects  in  compliance  with  law, 
and  such  as  to  entitle  the  relator  to  a  patent ;  that,  in  accordance  with 
that  finding,  a  patent  for  the  tract  was,  Sept.  26,  1877,  duly  signed, 
sealed,  and,  by  the  Recorder  of  the  General  Land-Office,  countersigned 
and  recorded  in  the  proper  land  records  of  the  United  States ;  that  it 
was,  Oct.  3,  1877,  transmitted  by  the  commissioner  to  the  local  land- 
officers  at  Salt  Lake  City,  with  instructions  to  deliver  it  to  the  relator, 
and  "was  received  by  them;  that  he  appeared  at  said  land-office,  and 
demanded  of  them  to  deliver  the  patent  to  him ;  that  they  refused  to 
do  so,  because  they  had  been  instructed  by  the  commissioner,  Oct. 
14,  1877,  to  return  it;  that  it  was  so  returned  Oct.  22,  1878,  and  was 

1  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  219. 
Bvrd.Cas.Real  Pbop,— 33  (513) 


514  TITLE — IX    GENERAL 

then  in  the  Department  of  the  Interior,  subject  to  the  control  of  the 
Secretary  of  the  Interior ;  that  Carl  Schurz  is  such  Secretary ;  and  that 
the  relator,  Oct.  6,  1879,  demanded  of  him,  at  his  office  in  the  Depart- 
ment of  the  Interior,  the  delivery  of  said  patent,  but  the  Secretary, 
on  the  tenth  day  of  that  month,  absolutely  refused  to  deliver  it.  The 
petition  prays  that  the  writ  of  mandamus  issue,  directing  the  Secre- 
tary to  deliver  the  patent  to  the  relator.    *    *    *  2 

Mr.  Justice  Miller,  after  stating  the  case,  delivered  the  opinion 
of  the  court. ^    *    *    * 

The  Constitution  of  the  United  States  declares  that  Congress  shall 
have  power  to  dispose  of  and  make  all  needful  rules  and  regula- 
tions respecting  the  territory  and  other  property  belonging  to  the  Unit' 
ed  States.  Under  this  provision  the  sale  of  the  public  lands  was  placed 
by  statute  under  the  control  of  the  Secretary  of  the  Interior.  To  aid 
him  in  the  performance  of  this  duty,  a  bureau  was  created,  at  the  head 
of  which  is  the  Commissioner  of  the  General  Land-Office,  with  many 
subordinates.  To  them,  as  a  special  tribunal,  Congress  confided  the 
execution  of  the  laws  which  regulate  the  surveying,  the  selling,  and 
the  general  care  of  these  lands. 

Congress  has  also  enacted  a  system  of  laws  by  which  rights  to  these 
lands  may  be  acquired,  and  the  title  of  the  government  conveyed  to 
the  citizen.  This  court  has  with  a  strong  hand  upheld  the  doctrine 
that  so  long  as  the  legal  title  to  these  lands  remained  in  the  United 
States,  and  the  proceedings  for  acquiring  it  were  as  yet  in  fieri,  the 
courts  would  not  interfere  to  control  the  exercise  of  the  power  thus 
vested  in  that  tril)unal.    To  that  doctrine  we  still  adhere. 

But  we  have  alSo  held  that  when,  by  the  action  of  these  officers  and 
of  the  President  of  the  United  States,  in  issuing  a  patent  to  a  citizen, 
the  title  to  the  lands  has  passed  from  the  government,  the  question 
as  to  the  real  ownership  of  them  is  open  in  the  proper  courts  to  all 
the  considerations  appropriate  to  the  case.  And  this  is  so,  whether 
I  the  suit  is  by  the  United  States  to  set  aside  the  patent  and  recover  back 
the  title  so  conveyed,  as  in  United  States  v.  Stone,  2  Wall.  525,  17 
L.  Ed.  765,  or  by  an  individual  to  cause  the  title  conveyed  by  the 
patent  to  be  held  in  trust  for  him  by  the  patentee  on  account  of  equita- 
ble circumstances  which  entitle  the  complainant  to  such  relief.  John- 
son V.  Towsley,  13  Wall.  72,  20  L.  Ed.  485,  and  other  cases. 

In  the  case  before  us  it  is  said  that  the  instrument  called  a  patent, 
which  purports  in  the  name  of  the  United  States  to  convey  to  McBride 
the  lands  in  controversy,  is  not  effectual  for  that  purpose  for  want  of 
delivery.  That  though  signed,  sealed,  countersigned,  and  recorded, 
and  then  sent  to  the  register  of  the  land-office  at  Salt  Lake  City  for 
delivery  to  him,  it  never  was  so  delivered,  and  has  always  remained 
under  the  control  of  the  officers  of  the  Land  Department,  and  that 

2  Part  of  the  statement  of  facts  is  omitted. 
8  Part  of  tbe  opinion  is  omitted. 


PUBLIC   GRANT  515 

the  instrument  is  invalid  as  a  deed  of  conveyance  for  want  of  delivery 
to  the  grantee.  If  it  were  conceded  that  delivery  of  the  patent  is  es- 
sential to  the  transfer  of  title  to  the  grantee,  and  that  such  delivery 
is  required  as  is  necessary  in  a  conveyance  from  man  to  man,  it  would 
be  a  question  of  some  dii^culty  to  decide  whether  such  delivery  took 
place  in  this  case.  The  well-known  principle  by  which  the  intention  of 
the  grantor  in  a  deed  to  make  an  act  which  falls  far  short  of  manual 
delivery,  to  stand  for  delivery,  when  so  designed,  might  well  be  ap- 
plied to  the  act  of  the  commissioner  in  transmitting  the  patent  by  mail 
to  the  local  office  for  the  purpose  of  delivery ;  while,  on  the  other  hand, 
it  is  argued  with  much  force  that  the  instrument  never  actually  passed 
from  the  land-office  or  the  control  of  its  officers.  We  do  not  think 
the  decision  of  this  point  necessary  to  the  case  before  us. 

We  are  of  opinion  that  when,  upon  the  decision  of  the  proper  office 
that  the  citizen  has  become  entitled  to  a  patent  for  a  portion  of  the 
public  lands,  such  a  patent  made  out  in  that  office  is  signed  by  the 
President,  sealed  with  the  seal  of  the  General  Land-Office,  counter- 
signed by  the  recorder  of  the  land-office,  and  duly  recorded  in  the 
record-book  kept  for  that  purpose,  it  becomes  a  solemn  public  act 
of  the  government  of  the  United  States,  and  needs  no  further  delivery 
or  other  authentication  to  make  it  perfect  and  valid.  In  such  case 
the  title  to  the  land  conveyed  passes  by  matter  of  record  to  the  grantee, 
and  the  delivery  which  is  required  when  a  deed  is  made  by  a  private 
individual  is  not  necessary  to  give  effect  to  the  granting  clause  of  the 
instrument. 

The  authorities  on  this  subject  are  numerous  and  uniform.  They 
have  their  origin  in  the  decisions  of  the  English  courts  upon  the 
grants  of  the  crown  evidenced  by  instruments  called  there,  as  here, 
patents. 

Blackstone  describes  four  modes  of  alienation  or  transfer  of  title 
to  real  estate,  which  he  calls  common  assurance :  the  first  of  which  is 
by  matter  in  pais  or  deed ;  the  second  by  matter  of  record,  or  an  as- 
surance transacted  only  in  the  king's  public  courts  of  record;  the  third 
by  special  custom ;  and  the  fourth  by  devise  in  a  last  will  or  testament. 

In  the  chapter  devoted  to  alienation  by  deed  he  enumerates  among 
the  requisites  to  its  validity  the  act  of  delivery.  Book  2,  c.  20.  But 
in  chapter  21,  devoted  to  alienation  by  matter  of  record,  nothing  is 
said  about  delivery  as  necessary  to  pass  the  title,  and  under  this  head 
he  includes  the  king's  grants.  These,  he  says,  are  all  made  matter  of 
public  record,  and  are  contained  in  charters  or  letters-patent.  He  then 
recites  the  processes  by  which  patents  are  prepared  and  perfected,  the 
various  officers  through  whose  hands  they  pass,  and  the  manner  of 
affixing  the  seal  to  them,  and  their  final  enrolment.  They  are  then 
perfect  grants,  and  no  mention  is  made  of  delivery  as  a  prerequisite 
to  their  validity.  After  this  they  can  only  be  revoked  or  annulled 
by  scire  facias  or  other  judicial  proceeding.  The  importance  attached 
to  the  delivery  of  the  deed  in  modern  conveyancing  arises  largely  from 


516  TITLE — IN   GENERAL 

the  fact  that  the  deed  has  taken  the  place  of  the  ancient  livery  of  seisin 
in  feudal  times,  when,  in  order  to  give  effect  to  the  enfeoffment  of 
the  new  tenant,  the  act  of  delivering  possession  in  a  public  and  noto- 
rious manner  was  the  essential  evidence  of  the  investiture  of  the  title 
to  the  land.  This  became  gradually  diminished  in  importance  until  the 
manual  delivery  of  a  piece  of  the  turf,  and  many  other  symbolical  acts, 
became  sufficient.  When  all  this  passed  away,  and  the  creation  and 
transfer  of  estates  in  land  by  a  written  instrument,  called  the  act  or 
deed  of  the  party,  became  the  usual  mode,  the  instrument  was  at  first 
delivered  on  the  land  in  lieu  of  livery  of  seisin.  Shepherd's  Touch- 
stone, 54;  Co.  Litt.  266  b;  Washburn,  Real  Property,  book  3,  308. 
Finally,  any  delivery  of  the  deed,  or  any  act  which  the  party  intended 
to  stand  for  such  delivery,  became  effectual  to  pass  the  title.  Church 
V.  Oilman,  15  Wend.  (N.  Y.)  656,  30  Am.  Dec.  82;  Butler  v.  Baker,  3 
Co.  25  b ;  Warren  v.  Swett,  31  N.  H.  332;  Hatch  v.  Hatch,  9  Mass.  307, 
6  Am.  Dec.  67. 

But  in  regard  to  the  transfer  of  title  by  matter  of  record,  whether 
this  record  were  a  judgment  or  decree  in  a  court  of  justice,  as  fines 
and  recoveries,  or  the  record  made  in  the  proper  office  (generally  in 
the  Court  of  Chancery  by  the  Lord  Chancellor)  of  the  king's  grant, 
called  enrolment,  no  deliver}'  of  seisin  was  necessary,  nor  any  delivery 
of  the  document  sealed  with  the  king's  seal ;  for  when  this  seal  was 
affixed  to  the  instrument  and  the  enrolment  of  it  was  made,  no  higher 
evidence  could  be  had,  nor  was  any  other  evidence  necessary  of  this 
act  or  deed  of  the  king.  Hence,  Mr.  Cruise,  in  his  Digest  of  the 
English  Law  of  Real  Property,  says:  "The  king's  letters-patent  need 
no  delivery;  nor  his  patents  under  the  great  seal  of  the  Duchy  of 
Lancaster;  for  they  are  sufficiently  authenticated  and  completed  by 
the  annexing  of  the  respective  seals  to  them."  Title  XXXIV.  sect.  1, 
par.  3. 

In  Marbury  v.  Madison  [1  Cranch,  137,  2  L.  Ed.  60],  to  which 
we  have  already  referred,  the  court,  likening  the  commission  of  the 
justice  of  the  peace,  which  was  signed  and  sealed  by  the  President 
and  left  in  the  hands  of  the  Secretary  of  State,  to  a  patent  for  lands, 
uses  this  language:  "By  the  act  passed  in  1796,  authorizing  the  sale 
of  lands  above  the  mouth  of  the  Kentucky  River  (vol.  iii.  p.  229), 
the  purchaser,  on  paying  his  purchase-money,  becomes  completely  en- 
titled to  the  property  purchased,  and  on  producing  to  the  Secretary 
of  State  the  receipt  of  the  Treasurer,  upon  a  certificate  required  by 
the  law,  the  President  of  the  United  States  is  authorized  to  grant  him 
a  patent.  It  is  further  enacted  that  all  patents  shall  be  countersigned 
by  the  Secretary  of  State  and  recorded  in  his  office.  If  the  Secretary 
'  of  State  should  choose  to  ivithhold  this  patent,  or  the  patent  being 
lost  should  refuse  a  copy  of  it,  can  it  be  imagined  that  the  law  fur- 
nishes to  the  injured  party  no  remedy?  It  is  not  believed  that  any 
person  zdiatever  would  attempt  to  vvaiiitain  such  a  proposition." 


PUBLIC    GRANT  517 

In  another  part  of  the  opinion  it  is  said:  "In  all  cases  of  letters- 
patent,  certain  solemnities  are_  required  by  law,  which  solemnities  are 
the  evidences  of  the  validity  of  the  instrument.  A  formal  delivery 
to  the  person  is  not  among  them.  In  cases  of  commissions,  the  sign- 
manual  of  the  President  and  the  seal  of  the  United  States  are  those 
solemnities." 

The  same  principle  is  found  in  the  opinion  -of  the  court,  delivered 
by  Mr.  Justice  Story,  in  Green  v.  Liter,  8  Cranch,  229,  3  L.  Ed.  545. 

Many  decisions  of  State  courts  of  the  highest  character  to  the  same 
effect  are  cited  in  the  brief  of  counsel  for  the  relator  in  this  case, 
among  which  may  be  mentioned  Ex  parte  Kuhtman,  3  Rich.  Eq.  (S. 
C.)  257,  55  Am.  Dec.  642;  Donner  v.  Palmer,  31  Cal.  500.  The  sub- 
ject is  very  fully  and  ably  discussed  by  Mr.  Justice  Field  in  the  case 
of  Leroy  v.  Jamison,  3  Sawy.  369,  Fed.  Cas.  No.  8,271. 

It  is  also  said  that  there  was  no  acceptance  of  this  patent  by  the 
grantee,  and  for  that  reason  it  is  ineffectual  to  convey  title.  It  is  not 
necessary  to  enter  into  much  discussion  on  this  subject,  because  the 
acceptance  of  a  deed  may  be  presumed  under  circumstances  far  short 
of  what  was  admitted  to  exist  in  this  case. 

The  doctrine  on  this  point  is  well  stated  by  Attorney-General  Crit- 
tenden, in  the  case  of  Pierre  Mutelle,  in  1841,  as  found  in  3  Op.  Att.- 
Gen.  654,  which  was  a  case  like  the  present,  in  regard  to  the  duty 
of  the  Secretary  to  deliver  the  patent  then  lying  in  the  office. 

"My  opinion,"  said  he,  "is  that  the  title  to  the  land  did  pass  to 
Pierre  Mutelle  at  the  date  of  the  patent  to  him,  though  that  patent  still 
remains  in  the  land-office  zvithout  any  actual  tradition  of  it  to  any 
one.  The  patent  was  issued  by  authority  and  direction  of  law,  and 
upon  general  principles,  where  the  patentee  does  not  expressly  dis- 
sent, his  assent  and  acceptance  are  to  be  presumed  from  the  beneficial 
nature  of  the  grant.  But  it  is  hardly  necessary  to  resort  to  such 
presumptions,  because,  in  this  and  in  all  such  cases,  the  acts  required 
to  be  done  by  the  claimant,  and  actually  done  by  him  in  the  prepara- 
tion of  his  claim  for  patenting,  are  equivalent  to  a  positive  demand 
oT  the  patent  and  amount  to  an  acceptance  of  it.  The  patent,  in  the 
meaning  of  the  act  referred  to,  is  granted  to  the  patentee  from  its  • 
'^fe,  though  he  may  never  actually  see  or  receive  it,  and  is  valid  and 
effectual  to  pass  the  title  to  the  land. 

"All  legal  muniments  of  title  belong  to  him  who  owns  the  land, 
*  *  *  but  as  the  patent  is  a  recorded  evidence  of  title,  always 
accessible,  no  material  prejudice  can  result  to  the  true  owner  from 
a  stranger  getting  possession  of  it." 

The  long  pursuit  of  this  claim  by  McBride,  his  repeated  demand  1 1 
for  the  patent  after  it  had  been  perfected,  and  his  persistent  effort  \\ 
to  obtain  possession  of  it,  are  ample  proof  of  his  acceptance  of  the 
grant  of  which  it  is  the  evidence. 


518  TITLE IX    GENERAL 

It  is  argued  with  much  plausibiHty  that  the  relator  was  not  en- 
titled to  the  land  by  the  laws  of  the  United  States,  because  it  was 
not  subject  to  homestead  entry,  and  that  the  patent  is,  therefore,  void, 
and  the  law  will  not  require  the  Secretary  to  do  a  vain  thing  by  de- 
livering it,  which  may  at  the  same  time  embarrass  the  rights  of  others 
in  regard  to  the  same  land. 

We  are  not  prepared  to  say  that  if  the  patent  is  absolutely  void, 
so  that  no  right  could  possibly  accrue  to  the  plaintiff  under  it,  the 
suggestion  would  not  be  a  sound  one. 

But  the  distinction  between  a  void  and  a  voidable  instrument,  though 
sometimes  a  very  nice  one,  is  still  a  well-recognized  distinction  on 
which  valuable  rights  often  depend.  And  the  case  before  us  is  one 
to  which  we  think  it  is  clearly  applicable.  To  the  officers_of  the  Land 
Department,  among  whom  we  include  the  Secretary  of  the  Interior, 
is  confided,  as  we  have  already  said,  the  administration  of  the  laws 
concerning  the  sale  of  the  public  domain.  The  land  in  the  present 
case  had  been  surveyed,  and,  under  their  control,  the  land  in  that 
District  generally  had  been  opened  to  pre-emption,  homestead  entry, 
and  sale.  The  question  whether  any  particular  tract,  belonging  to 
the  government,  was  open  to  sale,  pre-emption,  or  homestead  right, 
is  in  every  instance  a  question  of  law  as  applied  to  the  facts  for  the 
determination  of  those  officers.  Their  decision  of  such  question  and 
of  conflicting  claims  to  the  same  land  by  different  parties  is  judicial 
in  its  character. 

It  is  clear  that  the  right  and  the  duty  of  deciding  all  such  questions 
belong  to  those  officers,  and  the  statutes  have  provided  for  original 
and  appellate  hearings  in  that  department  before  the  successive  of- 
ficers of  higher  grade  up  to  the  Secretary.  They  have,  therefore,  ju- 
risdiction of  such  cases,  and  provision  is  made  for  the  correction  of 
errors  in  the  exercise  of  that  jurisdiction.  When  their  decision  of 
such  a  question-is  finally  made  and  recorded  in  the  shape  of  ^the  patent, 
how  can  it  be  said  that  the  instrument  is  absolutely  void  for  such 
errors  as  these?  If  a  patent  should  issue  for  land  in  the  State  of, 
^Massachusetts,  where  the  government  never  had  any,  it  would  be  ab- 
solutely void.  If  it  should  issue  for  land  once  owned  by  the  govern- 
ment, but  long  before  sold  and  conveyed  by  patent  to  another  who 
held  possession,  it  might  be  held  void  in  a  court  of  law  on  the  pro- 
duction of  the  senior  patent.  But  such  is  not  the  case  before  us.  Here 
the  question  is  whether  this  land  had  been  withdrawn  from  the  con- 
trol of  the  Land  Department  by  certain  acts  of  other  persons,  which 
include  it  within  the  limits  of  an  incorporated  town.  The  whole  ques- 
tion is  one  of  disputed  law  and  disputed  facts.  It  was  a  question  for 
th"e  land-officers  to  consider  and  decide  before  they  determined  to  is- 
sue McBride's  patent.  It  was  within  their  jurisdiction  to  do  so.  If 
they  decided  erroneously,  the  patent  may  be  voidable,  but  not  abso- 
lutely void. 


PUBLIC    GRANT  519 

The  mode  of  avoiding  it,  if  voidable,  is  not  by  arbitrarily  with- 
holding- it,  but  by  judicial  proceedings  to  set  it  aside,  or  correct  it  if 
only  partly  wrong.  It  was  within  the  province  of  those  officers  to 
sell  the  land,  and  to  decide  to  whom  and  for  what  price  it  should  be 
sold ;  and  when,  in  accordance  with  their  decision,  it  was  sold,  the 
money  paid  for  it,  and  the  grant  carried  into  effect  by  a  duly  executed 
patent,  that  instrument  carried  with  it  the  title  of  the  United  States 
to  the  land. 

From  the  very  nature  of  the  functions  performed  by  these  officers, 
and  from  the  fact  that  a  transfer  of  the  title  from  the  United  States 
to  another  owner  follows  their  favorable  action,  it  must  result  that 
at  some  stage  or  other  of  the  proceedings  their  authority  in  the  mat- 
ter ceases. 

It  is  equally  clear  that  this  period  is,  at  the  latest,  precisely  when 
the  last  act  in  the  series  essential  to  the  transfer  of  title  has  been 
performed.  Whenever  this  takes  place,  the  land  has  ceased  to  be 
the  land  of  the  government;  or,  to  speak  in  technical  language,  the 
legal  title  has  passed  from  the  government,  and  the  power  of  these 
officers  to  deal  with  it  has  also  passed  away.  The  fact  that  the  evi- 
dence of  this  transfer  of  title  remains  in  the  possession  of  the  land- 
officers  cannot  restore  the  title  to  the  United  States  or  defeat  that  of 
'the  grantee,  any  more  than  the  burning  up  of  a  man's  title-deeds  de- 
stroys his  title. 

What  is  this  final  act  which  closes  the  transaction? 

In  Marbury  v.  Madison  (supra),  this  court  was  of  opinion  that  when 
the  commission  of  an  officer  was  signed  by  the  President  and  the 
seal  of  the  United  States  affixed  to  it,  the  commission  was  complete 
and  the  officer  entitled  to  its  possession  could  enforce  its  delivery  by 
the  writ  of  mandamus.  In  regard  to  patents  for  land,  it  may  be  some- 
what different,  and  it  is  not  necessary  in  this  case  to  go  quite  so  far. 
,  But  we  may  well  consider  that  in  all  nations,  as  far  as  we  know, 
where  grants  of  the  property  of  the  government  or  of  the  crown  are 
made  by  written  instruments,  provision  is  made  for  a  record  of  these 
instruments  in  some  public  government  office.  Our  experience  in  re- 
gard to  Mexican,  Spanish,  and  French  grants  of  parts  of  the  public 
domain  purchased  by  us  from  those  governments  teaches  us  that  such 
is  the  uniform  law  of  those  countries.  We  have  already  shown  that 
under  the  English  law  all  letters-patent  are  enrolled,  and  that  this 
is  the  last  act  in  the  process  of  issuing  a  patent  which  is  essential  to 
its  validity. 

We  are  safe  in  saying  that  every  State  of  the  Union  has  similar 
provisions  in  reference  to  its  grants  of  land,  and  it  has  been  the  ef- 
fort of  most  of  them  to  compel  public  record  of  all  conveyances  of 
land  by  individuals  or  corporations. 

The  acts  of  Congress  provide  for  the  record  of  all  patents  for  land 
in  an  office,  and  in  books  kept  for  that  purpose.     An  officer,  called 


1)20  TITLE IN   GENERAL 

the  Recorder,  is  appointed  to  make  and  to  keep  these  records.  He 
is  required  to  record  every  patent  before  it  is  issued,  and  to  counter- 
sign the  instrument  to  be  dehvered  to  the  grantee.  This,  then,  is  the 
final  record  of  the  transaction, — the  legally  prescribed  act  which  com- 
pletes what  Blackstone  calls  "title  by  record ;"  and  when  this  is  done, 
the  grantee  is  invested  with  that  title. 

We  do  not  say  that  there  may  not  be  rare  cases  where  all  this  has 
been  done,  and  yet  the  officer  in  possession  of  the  patent  be  not  com- 
pellable to  deliver  it  to  the  grantee.  If,  for  instance,  the  secretary 
whom  the  President  is  authorized  by  law  to  appoint  to  sign  his  name 
to  the  patent  should  do  so  when  he  has  been  forbidden  by  the  Presi- 
dent, or  if,  by  some  mere  clerical  mistake,  the  intention  of  the  officer 
performing  an  essential  part  in  the  execution  of  the  patent  has  been 
frustrated.  It  is  not  necessary  to  decide  on  all  the  hypothetical  cases 
that  could  be  imagined. 

But  we  are  of  opinion  that  when  all  that  we  have  mentioned  has 
been  consciously  and  purposely  done  by  each  officer  engaged  in  it, 
and  where  these  officers  have  been  acting  in  a  matter  within  the  scope 
of  their  duties,  the  legal  title  to  the  land  passes  to  the  grantee,  and 
with  it  the  right  to  the  possession  of  the  patent. 

No  further  authority  to  consider  the  patentee's  case  remains  in  the 
land-office.  No  right  to  consider  whether  he  ought  in  equity,  or  on 
new  information,  to  have  the  title  or  receive  the  patent.  There  re- 
mains the  duty,  simply  ministerial,  to  deliver  the  patent  to  the  owner, 
— a  duty  which,  within  all  the  definitions,  can  be  enforced  by  the 
writ  of  mandamus. 

It  is  not  always  that  the  ill  consequences  of  a  principle  should  con- 
trol a  court  in  deciding  what  the  established  law  on  a  particular  sub- 
ject is,  and  in  the  delicate  matter  of  controlling  the  action  of  a  high 
officer  of  the  executive  branch  of  the  government,  it  would  certainly 
not  alone  be  sufficient  to  justify  judicial  interposition.  But  it  rnay 
tend  to  reconcile  us  to  such  action  as  we  feel  forced  to  take,  under 
settled  doctrines  of  the  courts,  to  see  that  any  other  course  would 
lead  to  irremediable  injustice. 

If  the  relator  in  this  case  cannot  obtain  his  patent,  he  is  wholly 
without  remedy.  He  cannot  sue  the  United  States,  in  whom  is  the 
title  in  the  absence  of  the  patent;  for  the  United  States  can  be  sued 
in  no  other  court  than  the  Court  of  Claims,  and  we  have  decided  that 
that  court  has  no  jurisdiction  in  such  a  case.  Bonner  v.  United  States, 
9  Wall.  156,  19  L.  Ed.  666.  There  is  no  one  else  to  sue,  for  the  title 
is  either  in  the  relator  or  the  United  States.  It  may  be  many  years 
before  the  city  of  Grantsville,  the  party  now  claiming  against  him, 
will  get  a  patent,  and  it  may  never  do  so. 

The  relator  is,  therefore,  utterly  without  remedy,  if  the  land  be 
rightfully  his,  until  he  can  obtain  possession  of  this  evidence  of  his 
title. 


PUBLIC    GRANT  521 

On  the  other  hand,  when  he  obtains  this  possession,  if  there  be  any 
equitable  reason  why,  as  against  the  government,  he  should  not  have 
it, — if  it  has  been  issued  without  authority  of  law,  or  by  mistake  of  , 
facts,  or  by  fraud  of  the  grantee, — the  United  States  can,  by  a  bill ' 
in  chancery,  have  a  decree  annulling  the  patent,  or  possibly  a  writ 
of  scire  facias.     If  another  party  (as  the  city  of  Grantsville)  is,  for  \ 
any  of  the  reasons  cognizable  in  a  court  of  equity,  entitled,  as  against  . 
the  relator,  to  have  the  title  which  the  patent  conveys  to  him,  a  court  j 
of  chancery  can  give  similar  relief  to  the  city  as  soon  as  the  patent  ] 
comes  into  his  possession,  or  perhaps  before.     So  that  it  is  plain  that  i 
by  non-action  of  the  Land  Department  the  legal  rights  of  the  parties  ' 
may  remain  indefinitely  undecided,  and  those  of  the  relator  seriously 
embarrassed  or  totally  defeated,  while  the  delivery  of  the  patent,  un-  i 
der  the  writ  of  mandamus,  opens  to  all  the  parties  the  portals  of  the 
courts  where  their  rights  can  be  judicially  determined. 

We  are  of  opinion  that  the  relator  in  the  case,  as  presented  to  us, 
is  entitled  to  the  possession  of  the  patent  which  he  demanded,  and 
that  the  writ  of  mandamus  by  the  Supreme  Court  of  the  District  of 
Columbia  is  the  appropriate  remedy  to  enforce  that  right.  The  judg- 
ment of  that  court  will  be  reversed,  and  the  case  remanded  with  in- 
structions to  issue  the  writ;    and  it  is  so  ordered. 

Mr.  Chief  Justice  Waits,  with  whom  concurred  Mx.  Justice 
SwAYNE,  dissented.* 


RIERSON  V.  ST.  LOUIS  &  S.  F.  RY.  CO. 

(Supreme  Court  of  Kansas,  1898.    59  Kan.  32,  51  Pac.  901.> 

Error  from  district  court.  Greenwood  county;   C.  W.  Shinn,  Judge. 

Action  by  Winston  Rierson  against  the  St.  Louis  &  San  Francisco 
Railway  Company.  Judgment  for  defendant,  and  plaintiff  brings  er- 
ror.   Affirmed. 

Johnston,  J.  This  was  an  action  by  Winston  Rierson  to  recover 
from  the  railway  company  a  strip  of  land  which  had  been  used  as 
a  right  of  way  for  its  railroad  since  the  early  part  of  the  year  1880. 
The  land  over  which  the  right  of  way  was  located  was  a  part  of 
that  ceded  to  the  United  States  by  the  Great  and  Little  Osage  In- 
dians through  the  treaty  concluded  on  September  29,  1865,  and  pro- 
claimed by  the  president  on  January  2L  1867.  With  a  view  of  pur- 
chasing the  land  from  the  United  States,  Rierson  settled  upon  it  in 
September,  1880,  some  time  after  the  right  of  way  was  granted,  and 
the  railroad  was  in  operation  over  the  land  in  question.  On  June  6, 
1888,  Rierson  received  from  the  United  States  a  patent  for  the  land 
settled  upon,  no  exception  being  made  of  the  easement  for  right  of 
way,  and  he  has  been  continuously  in  the  possession  of  the  land  since 

«  The  dissenting  opinion  is  omitted. 


522 


TITLE — IN   GEXERAL 


that  time,  except  the  part  used  as  the  right  of  way.  The  St.  Louis, 
Wichita  &  Western  Railway  Company  was  duly  incorporated  in  1879, 
and  in  August  and  September  of  that  year  it  surveyed  its  road  and 
located  its  right  of  way  over  the  lands  in  controversy,  and  in  March, 
1880,  completed  the  construction  of  its  railroad  across  the  same. 
Prior  to  March  16,  1880,  the  railway  company  proceeded  to  obtain  a 
right  of  way  over  the  land  in  accordance  with  the  requirements  of 
"An  act  granting  to  railroads  the  right  of  way  through  the  public 
lands  of  the  United  States,"  approved  March  3,  1875,  by  filing  a  copy 
of  its  articles  of  incorporation  and  due  proofs  of  its  organization  there- 
under; all  of  which  were  duly  approved.  Subsequently,  and  before 
June  1,  1888,  the  company  filed  a  map  and  profile  of  its  road,  and 
on  the  day  last  mentioned  they  were  approved  by  the  secretary  of  the 
interior.  The  railway  company  continued  to  operate  its  railroad  until 
the  transfer  of  the  same,  together  with  all  its  property  and  franchises, 
to  its  successor,  the  St.  Louis  &  San  Francisco  Railway  Company, 
which  since  that  time  has  continuously  operated  the  railroad.  The 
trial  court  found  that  the  railway  company  acquired  its  right  of  way 
by  the  proceedings  taken  in  1880,  and  that  Rierson  took  his  title  from 
the  United  States  subject  to  the  easement  which  the  company  had 
previously  acquired. 

In  our  view,  a  correct  conclusion  was  reached.  According  to  the 
findings  of  the  trial  court,  the  rights  of  the  railway  company  were 
acquired  before  settlement  was  made  on  the  land  by  the  plaintifif,  or 
any  rights  therein  were  obtained  by  him.  He  insists  that  this,  with 
other  findings,  is  not  supported  by  the  testimony,  but,  as  the  case-made 
does  not  show  that  it  contains  all  the  evidence,  we  must  accept  the 
facts  as  stated  in  the  findings. 

There  is  a  contention  that  the  lands  ceded  are  not  public  lands,  with- 
in the  meaning  of  the  act  under  which  the  railway  company  claims 
to  have  acquired  its  rights,  and  therefore  no  right  of  way  was  ever 
obtained  by  it.  As  will  be  observed,  the  lands  were  ceded  to  the 
United  States  to  be  surveyed  and  sold  under  the  direction  of  the 
commissioner  of  the  general  land  office  at  a  price  not  less  than  $1.25 
per  acre,  as  other  lands  are  surveyed  and  sold,  under  such  rules  and 
regulations  as  the  secretary  of  the  interior  should  from  time  to  time 
prescribe.  The  proceeds  of  the  sale,  less  the  expenses  incurred,  were 
to  be  placed  in  the  treasury  of  the  United  States  to  the  credit  of  the 
Indians,  and  were  to  be  thereafter  expended  for  purposes  mentioned 
in  the  treaty.  There  was  a  provision  that  the  Indians  should  remove 
from  the  ceded  lands  within  six  months  after  the  ratification  of  the 
treaty,  and  should  settle  upon  their  diminished  reservation.  The  In- 
dians having  surrendered  the  right  of  occupancy,  and  cedecl  their 
lands  to  the  United  States,  with  power  of  sale  and  disposal,  there  can 
be  no  doubt  that  the  general  government  had  power  to  grant  a  right 
of  way  over  the  lands.  By  the  act  of  March  3,  1875,  it  was  enacted 
"that  right  of  way  through  the  public  lands  of  the  United  States  is 


PUBLIC    GRANT  523 

hereby  granted  to  ai/y  railroad  company   duly  organized  under   the 
laws  of  any  state  or  territory,"  etc.    1  Supp.  Rev.  St.  1891,  p.  91. 

Can  the  ceded  lands  be  regarded  as  public  lands  within  the  meaning 
of  this  act?  It  has  been  held  that  "the  words  'public  lands'  are  habitu- 
ally  used_in  our  legislation  to  describe  such  as  are  subject  to  sale  or 
other  disposal  under  general  laws."  Newhall  v,  Sanger,  92  U.  S. 
leZ,  23  L.  Ed.  769;  Bardon  v.  Railroad  Co.,  145  U.  S.  535,  12  Sup. 
Ct.  856,  Z6  L.  Ed.  806.  By  the  terms  of  the  treaty  the  ceded  lands 
were  to  be  sold  by  the  United  States  as  other  public  lands  were  sold, 
and,  as  they  must  be  sold  under  general  laws  and  regulations,  they 
fall  fairly  within  the  definition  of  public  lands  given  by  the  supreme 
court  of  the  United  States.  See.  also,  Roberts  v.  Railway  Co.,  43  Kan. 
102,  22  Pac.  1006.  The  act  of  March  3,  1875,  provides  that  its  pro- 
visions shall  not  apply  to  lands  reserved  from  sale ;  but  here,  in  ad- 
dition to  the  title  held  by  the  United  States  as  original  proprietor, 
specific  authority  was  given  to  sell  the  lands  as  other  public  lands  are 
sold.  Provision  was  made  in  the  treaty  for  right  of  way  to  railroad 
companies  over  the  land  not  ceded,  and  which  remained  to  the  Indians, 
but  no  provision  was  made  nor  limitations  placed  upon  the  power  of 
the  United  States  as  to  granting  a  right  of  way  over  the  lands  which 
had  been  ceded.  Being  public  lands,  it  follows  that  upon  compliance 
with  the  provisions  of  the  act  of  March  3,  1875,  the  company  would 
acquire  a  right  of  way.  The  court  found  that  the  company  had  com- 
plied with  the  requirements  of  the  act,  and,  if  we  could  measure  the 
sufficiency  of  the  evidence  from  what  is  preserved  in  the  record,  we 
would  be  compelled  to  hold  that  there  was  enough  to  sustain  the 
finding. 

Complaint  is  made  that  a  copy  of  the  map  filed  with  the  secretary 
of  the  interior  was  received  in  evidence  without  sufficient  identifica- 
tion. It  appears  to  be  an  exemplification  of  the  original  which  was  filed 
in  the  department  of  the  interior  by  the  railway  company,  certified  by 
the  commissioner  of  the  general  land  office  to  be  a  literal  copy  of  the 
original,  and  upon  its  face  it  appears  to  cover  the  land  in  controversy. 
Exemplifications  of  this  character  are  admitted  in  evidence  with  like 
effect  as  originals,  when  they  are  attested  by  the  officers  having  cus- 
tody of  the  originals.  Gen.  St.  1897,  c.  97,  §  10.  Attached  to  the  orig- 
inal map,  and  made  a  part  of  the  same,  are  the  affidavits  of  the  offi- 
cers of  the  company,  showing  that  the  route  surveyed  was  represented 
by  the  map,  that  it  had  been  indorsed  by  the  board  of  directors  of  the 
company,  and  that  it  was  filed  for  and  in  behalf  of  the  company  in 
order  to  obtain  the  right  of  way  under  the  above-mentioned  act  of 
congress.  The  map  shows  and  the  record  recites  that  it  was  filed  and 
approved  in  the  department  of  the  interior  on  June  1,  1880. 

Another  objection  to  its  reception  is  that  there  is  no  indorsement 
upon  the  same  showing  that  it  was  filed  in  the  land  office  at  Indepen- 
dence, Kan.,  being  the  office  for  the  district  within  which  the  land  in 
question  was  situated.     The  important  step  in  the  proceeding  was  the 


524  TITLE IN   GENERAL 

approval  of  the  secretary  of  the  interior.  His  approval  was  a  quasi 
judicial  act;  and  when  his  decision  is  made,  and  approval  given,  it 
inay  fairly  be  presumed  that  the  formalities  to  be  observed  and  pre- 
ceding steps  to  be  taken  by  the  railway  company  have  been  observed 
and  taken.  Aside  from  that,  however,  there  is  proof  that  the  map 
was  filed  in  the  land  office  at  Independence.  An  exemplification  of  a 
letter  of  the  register  of  the  land  office  at  that  place  was  introduced  in 
evidence,  showing  that  the  maps  of  location  of  the  railroad  were  filed 
in  that  office  on  April  27,  1880.  It  was  a  letter  which  accompanied  the 
maps,  addressed  to  the  commissioner  of  the  general  land  office,  and 
was  at  least  competent  for  the  purpose  of  showing  that  the  map  had 
been  filed  in  the  land  office  at  Independence.  The  letter  of  the  register 
of  the  land  office  at  Wichita,  to  which  objection  is  made,  appears  to 
have  no  bearing  on  the  case,  and,  being  immaterial,  no  prejudice  re- 
sulted from  its  admission. 

We  find  no  substantial  error  in  the  proceedings,  and  therefore  the 
judgment  of  the  district  court  will  be  affirmed.  All  the  justices  con- 
curring. 


U^  SIMS  V.  MORRISON. 

(Supreme  Court  of  Minnesota,  1904.    92  Minn.  341,  100  N.  W.  88.) 

Appeal  from  District  Court,  Itasca  County;  W.  S.  McClenahan, 
Judge. 

Action  by  Thomas  W.  Sims  against  Harriet  Morrison  and  others. 
From  an  order  sustaining  a  demurrer  to  the  complaint,  plaintiff  ap- 
peals.   Affirmed. 

Brown,  J.  Appeal  from  an  order  sustaining  a  general  demurrer 
to  the  complaint.  The  facts  stated  in  the  complaint  are,  in  substance, 
as  follows : 

On  August  16,  1894,  one  Roberts,  through  whom  plaintiff  claims, 
made  homestead  entry  of  the  land  in  controversy;  entered  upon  and 
continued  his  residence  thereon  until  July,  1900,  when  he  made  and 
submitted  to  the  Interior  Department  final  proof  of  his  entry  and  set- 
tlement. Prior  to  making  final  proof,  on  September  22,  1899,  one 
O'Connell  filed  a  contest  against  his  entry,  alleging  as  a  basis  thereof 
that  Roberts  had  abandoned  his  claim.  The  contest  was  decided  by 
the  local  land  office  adversely  to  O'Connell  and  in  favor  of  Roberts, 
which  decision  was  affirmed  by  the  Commissioner  of  the  General 
Land  Office,  and  later  by  the  Secretary  of  the  Interior ;  the  decision 
of  the  latter  official  having  been  made  on  the  23d  of  November,  1900. 
One  James  H.  Morrison  also  entered  a,  contest  against  Roberts,  alleg- 
ing an  abandonment  of  the  claim  by  him,  and  this  contest  was  pending 
and  undetermined  at  the  time  the  Secretary  of  the  Interior  rendered 
his  decision  adverse  to  the  O'Connell  contest.  On  December  13,  1900, 
subsequent  to  making  final  proof,  and  during  the  pendency  of  the  Mor- 


PUBLIC   GRANT  525 

rison  contest,  Roberts  deeded  or  attempted  to  transfer  to  plaintiff  the 
timber  then  standing  and  growing  upon  the  land.  Prior  to  that  date 
no  final  receipt  or  patent  had  ever  been  issued  to  Roberts.  In  fact, 
none  was  ever  issued  to  him.  Subsequently,  on  April  1,  1901,  Mor- 
rison was  permitted  to  amend  his  notice  of  contest  against  the  Roberts 
entry  by  adding,  as  a  new  ground  therefor,  the  sale  or  attempted  sale 
of  the  timber  by  Roberts  to  plaintiff. 

The  complaint  further  alleges  that  a  special  agent  of  the  Interior 
Department  called  upon  Roberts,  and  represented  to  him  that  he  had 
violated  the  law  by  making  a  sale  of  the  timber  before  the  issuance 
of  the  final  receipt,  and  was  subject  to  the  punishment  prescribed 
therefor  by  the  homestead  laws.  Thereafter,  on  July  6,  1901,  said 
Roberts,  influenced  thereto  by  threats  of  prosecution  by  said  agent, 
and  in  consideration  of  the  sum  of  $100  to  him  paid  by  Morrison,  re- 
linquished his  entry  to  the  general  government,  and  the  officers  of  the 
Interior  Department  permitted  Morrison  to  file  thereon  under  an  act 
of  Congress  known  as  the  "Stone  artd  Timber  Act."  Morrison  sub- 
sequently died,  and  his  heirs,  the  defendants  in  this  action,  made  pay- 
jnent  for  the  land  under  his  entry,  and  final  receipt  was  issued  to  them. 
Plaintiff  brought  this  action,  basing  his  right  of  recovery  upon  his 
contract  with  Roberts,  and  demands  judgment  that  the  plaintiff  be  de- 
creed the  owner  of  all  the  timber  standing  upon  the  land  in  question, 
and  that  it  be  further  decreed  that  defendants  have  no  title  or  right 
to  said  timber,  but  title  to  the  land  only,  and  adjudging  and  decreeing 
also  that  defendants  be  compelled  to  convey  to  plaintiff,  by  good  and 
sufficient  title,  the  timber,  and,  if  they  fail  to  do  so,  that  title  thereto 
be  vested  in  plaintiff  by  judgment  and  decree  of  the  court.  >^ 

The   trial  court  sustained  defendants'   demurrer  to  the   complaint      (  I 
on  the  ground  that  the  action,  being  one  to  impress  the  land  with  a 
trust  in  favor  of  plaintiff,  could  not  be  maintained  so  long  as  the  legal 
title  to  the  land  remained  in  the  government.    Whether  the  trial  court 
was  right  in  this  conclusion  is  the  only  question  for  our  consideration. 

We  are  not  concerned  with  the  question  whether  plaintiff's  contract 
with  Roberts  was  valid  or  invalid.  If  valid,  it  vested  in  plaintiff  an 
interest  in  the  land,  for  the  timber  attempted  to  be  conveyed  thereby 
was  a  part  of  the  realty.  It  is  probable,  within  some  of  the  decisions 
of  the  Interior  Department,  including  those  of  the  Commissioner  of 
the  General  Land  Office  and  the  Secretary  of  the  Interior,  that  the 
contract,  though  made  before  final  receipt  was  issued  to  Roberts,  was 
valid  and  enforceable.  The  cases  cited  by  appellant  sustain  the  general 
proposition  that  an  entryman  under  the  homestead  laws  may,  after  he 
Has  perfected  final  proof  of  his  entry,  sell  and  convey  the  land  to  a 
third  person  before  final  receipt  or  patent  is  issued,  and  vest  in  the 
purchaser  all  rights  possessed  by  him.  In  such  cases  the  government 
will,  upon  proper  showing,  issue  the  patent  to  the  purchaser.  Magalia 
Gold  Min.  Co.  v.  Ferguson,  6  Land  Dec.  Dep.  Int.  218;  Orr  v.  Breach, 
7  Land  Dec.  Dep.  Int.  292 ;  Cornelius  v.  Kessel,  128  U.  S.  456,  9  Sup. 


526  TITLE IN   GENERAL 

Ct.  122,  32  L.  Ed.  482.  But  rights  thus  acquired  are  equitable  in  their 
nature,  and  must  be  adjusted  in  the  Land  Department,  where  rehef  is 
sought  before  patent  issues.  So  it  may  be  conceded  for  the  purposes 
of  this  case  that  the  Roberts  contract  was  a  valid  transfer  to  plaintiff 
of  the  timber  standing  upon  the  land,  and  we  are  confronted  with  the 
question  whether  the  rights  thus  acquired  may  be  enforced  in  the 
courts  before  the  legal  title  to  the  land  has  passed  from  the  govern- 
ment. 

The  object  of  this  action  is  to  impress  the  land  in  the  hands  of  de- 
fendants with  a  trust  in  favor  of  plaintiff,  to  the  extent  that  plahitiff 
may  be  awarded  the  right  to  enter  into  possession  of  the  same  for  the 
purpose  of  cutting  and  removing  the  timber  under  the  Roberts  con- 
tract. The  legal  title  to  the  land  is  in  the  general  government.  No 
final  receipt  was  ever  issued  to  Roberts  under  his  homestead  entry 
and  final  proof,  and,  subsequent  to  making  the  contract  with  plaintiff 
here  relied  upon,  he  relinquished  his  entry,  and  the  ancestor  of  de- 
fendants was  permitted  to  file  thereon,  and  to  defendants,  upon  final 
proof  under  his  entry,  a  final  receipt  was  issued.  Morrison  had  full 
notice  of  whatever  rights  plaintiff  had  under  the  Roberts  contract  at 
tlie  time  of  filing  upon  the  land,  and  he  took  the  same  subject  to  what- 
ever rights  plaintiff  had  therein.  Defendants,  his  heirs,  are  in  no 
better  position  than  he  would  have  been,  had  he  lived,  and  this  action 
been  brought  against  him.  But  these  facts  are  unimportant.  The 
question  presented  is  whether  the  court  has  jurisdiction  to  grant  such 
relief,  and  adjust  the  equities  of  the  parties,  before  the  legal  title  has 
passed  from  the  general  government,  notwithstanding  the  validity  of 
the  Roberts  contract,  and  that  defendants  are  bound  thereby. 

A  trust,  as  remarked  bv  Jnstice  Alitchell  in  Hospes  v.  N.  W.  Mfg. 
Co.,  48  Minn.  192,  50  N.  W.  1117,  15  L.  R.  A.  470,  31  Am.  St.  Rep. 
637,  implies  two  estates  or  interests — one  equitable  and  one  legal ;  one 
person,  as  trustee,  holding  the  legal  title,  while  another,  as  cestui  que 
trust,  has  the  beneficial  or  equitable  interest.  This  is  an  accurate  state- 
ment of  the  general. rule  running  through  all  the  adjudged  cases,  and 
none  are  cited  holding  that  real  property  will  be  impressed  with  a 
trust  against  one  who  holds  only  an  equitable  title.  The  rule  applies 
with  greater  force  to  the  case  at  bar,  for  here  the  legal  title  to  the 
land  is  in  the  general  government,  with  no  certainty  that  it  will  ever 
become  vested  in  defendants,  and  the  rights  of  both  are  purely  equita- 
ble. The_goyernment  has  the  paramount  and  sole  authority  to  dispose 
of„its.  lands,  and,  until  it  parts  with  and  conveys  its  title,  the  courts 
are  powerless  to  aid  litigants  in  controversies  affecting  or  involving 
individual  claims  thereto.  i'Nxtions  involving  merely  possessory  rights 
do  not  come  within  that  rule.  Actions  of  that  nature,  though  the  legal 
title  be  in  the  government,  may  be  entertained  in  the  courts,  and  full 
and  adequate  relief  granted  the  contending  parties,  even  before  the 
legal  title  has  passed  from  the  government.  That  rule  was  followed 
and  applied  in  Matthews  v.  O'Brien,  84  Minn.  505,  88  N.  W.  12,  and 


PRIVATE    GRANT  527 

in  Michaelis  v.  Michaells,  43  Minn.  123,  44  N.  W.  1149.  But  con- 
troversies involving  the  legal  title  must  be  fought  out  before  the  land 
"^department  of  the  general  government.  Gen.  St.  1894,  §  5754,  pro- 
viding that  the  receiver's  final  receipt  issued  by  the  United  States 
Land  Office  is  prima  facie  evidence  of  title,  does  not  change  the  gen- 
eral rule  in  this  respect.  That  statute  is  a  mere  rule  of  evidence,  and 
was  not  intended  to  create  or  vest  title  to  government  lands,  and  it 
cannot  be  construed  as  fixing  a  time  when  the  title  to  such  lands  passes 
to  an  entryman  under  the  homestead  laws. 

The  action  at  bar  is  something  more  than  one  involving  the  posses- 
sion of  the  land — it  involves  an  interest  in  the  land — and  the  relief 
prayed  for  cannot,  within  the  authorities,  be  granted  by  the  courts  un- 
til the  government  has  parted  with  its  title.  It  was  said  in  Brown 
V.  Hitchcock,  173  U.  S.  473,  19  Sup.  Ct.  485,  43  L.  Ed.  772— an  action 
involving  rights  in  government  land:  "In  this  case  the  record  dis- 
closes no  patent,  and  therefore  no  passing  of  the  legal  title.  Whatever 
equitable  rights  or  title  may  have  vested  in  the  state,  the  legal  title 
remained  in  the  United  States.  Until  the  legal  title  to  public  land 
passes  from  the  government,  inquiry  as  to  all  equitable  rights  comes 
within  the  cognizance  of  the  Land  Department."  The  rule  is  clearly 
stated  in  McCord  v.  Hill,  104  Wis.  457,  80  N.  W.  735,  as  follows :  "It 
is  only  after  the  United  States  has  parted  with  its  title,  and  the  in- 
dividual  has  become  vested  with  it,  that  the  equities  on  which  he  holds 
iFmay  be  enforced,  and  not  before.  *  *  *  Such  being  the  law,  a 
coniplaint  which  seeks  to  have  the  court  adjust  equities  between  rival 
claimants  to  government  lands  is  fatally  defective,  if  it  fails  to  show 
that  the  title  has  become  vested  in  the  individual  against  whom  it  is 
sought  to  enforce  supposed  equities."  See,  also,  Empey  v.  Plugert,  64 
Wis.  603,  25  N.  W.  560;  Marquez  v.  Frisbie,  101  U.  S.  473,  25  L. 
Ed.  800;  United  States  v.  Schurz,  102  U.  S.  378,  26  L.  Ed.  167;  In  re 
Emblem,  161  U.  S.  52,  16  Sup.  Ct.  487,  40  L.  Ed.  613. 

For  these  reasons,  the  court  below  properly  sustained  the  demurrer 
to  plaintiff's  complaint,  and  the  order  appealed  from  is  affirmed. 


II.  Private  Grant' 

1.  Conveyances  at  Common  Law  and  under  Statute  oe  Uses 


JACKSON  ex  dem.  GOUCH  v.  WOOD. 
(Supreme  Court  of  Judicature  of  New  York,  1815.    12  Johns.  73.) 

This  was  an  action  of  ejectment  for  lot  No.  7,  in  the  town  of  Locke, 
in  the  county  of  Onondaga,  and  was  tried  before  Mr.  Justice  Thomp- 
son, at  the  Cayuga  circuit,  in  June,  1813. 

s  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  221-226. 


528  TITLE IN   GENERAL 

The  lessors  of  the  plaintiff  gave  in  evidence  the  exemplification  of 
a  patent,  dated  the  13th  of  June,  1791,  to  John  Day  for  the  lot  in 
question.  He  then  proved  that  Moses  Gouch  was  the  identical  person 
who  served,  and  was  known  in  the  New  York  line  of  the  army  by  the 
name  of  John  Day,  and  that  he  was  the  same  person  to  whom  the 
patent  was  granted  by  that  name.  It  was  also  proved,  that  Moses 
Gouch,  alias  dictus  John  Day  was  dead,  and  that  the  lessors  of  the 
plaintiff  were  his  heirs  at  law. 

The  defendant  gave  in  evidence  an  instrument  in  writing  endorsed 

on  the   original  patent,   dated   the   19th   of   November,   1792,   signed 

his 
"John  X  Day,"  but  without  any  seal,  by  which  he,  John  Day,   for 

mark 

the  consideration  of  ten  pounds,  paid  to  him  by  Benjamin  Prescott, 
bargained,  sold,  remised,  released  and  quit-claimed  to  the  said  Ben- 
jamin Prescott,  his  heirs  and  assigns,  all  his  right,  title,  claim,  and  in- 
terest, of,  in,  and  to  the  premises  granted  and  described  in  the  patent, 
to  have  and  to  hold  the  same  to  the  said  Benjamin  Prescott,  and  to 
his  heirs  and  assigns,  to  his  and  their  only  proper  use  and  benefit  for- 
ever ;  and  to  this  instrument  the  names  of  two  witnesses  are  subscribed. 

There  never  having  been  any  seal  to  the  writing  thus  endorsed  on  the 
patent,  it  was  objected,  on  the  part  of  the  plaintiff,  that  it  amounted 
to  no  more  than  a  parol  contract,  and  was  not  sufficient  to  pass  the 
land.  This  point  was  reserved  by  the  judge,  and  the  defendant  gave 
in  evidence  sundry  mesne  conveyances  from  Benjamin  Prescott  to 
himself,  all  of  which  had  been  duly  recorded :  he  also  showed  a  pos- 
session for  seven  or  eight  years.  A  verdict  was  taken  for  the  plaintiff, 
subject  to  the  opinion  of  the  Court,  on  a  case,  as  above  stated. 

Platt,  J.,  delivered  the  opinion  of  the  Court. 

The  single  question  in  this  case  is,  whether  an  estate  in  fee  can  be 
conveyed  otherwise  than  by  deed;  that  is  to  say,  whether  a  seal  is  es- 
sential to  such  conveyance. 

The  earliest  mode  of  transferring  a  freehold  estate,  known  in  the 
English  common  law,  was  by  livery  of  seisin  only.  Co.  Lit.  49,  b, 
48,  b.  But  when  the  art  of  writing  became  common  among  our  rude 
ancestors,  the  deed  of  feoffment  was  introduced,  in  order  to  ascertain 
with  more  precision  the  nature  and  extent  of  the  estate  granted,  with 
the  various  conditions  and  limitations.  This  deed,  however,  was  of  no 
validity,  unless  accompanied  by  the  old  ceremony  of  livery  and  seisin. 
2  Blacks.  Com.  318. 

The  statute  of  uses  (27  Hen.  VHI.)  gave  rise  to  the  deed  of  bargain 
and  sale;  and,  soon  afterwards,  the  conveyance  by  lease  and  release 
was  introduced,  in  order  to  avoid  the  necessity  of  enrolment,  required 
by  the  statute  of  27  Hen.  VHI.  2  Black.  Com.  343.  By  virtue  of  the 
statute  of  uses,  which  we  have  adopted,  (without  the  proviso  in  the 
English  statute  requiring  the  enrolment  of  deeds,)  the  deed  of  bargain 
and  sale,  now  in  use  here,  is  equivalent  to  the  deed  of  feoffment  with 


PRIVATE   GRANT  529 

livery  of  seisin,  (2  Black.  Cora.  339,  343,)  and  has,  in  practice,  supersed- 
ed the  lease  and  release. 

By  the  common  law,  estates  less  than  a  freehold  might  be  created 
or  assigned,  either  by  deed,  by  writing  without  seal,  or  by  parol  merely. 

By  the  29  Car.  11.  c.  3,  (9th  and  10th  sections  of  our  "act  for  the  pre- 
vention of  frauds,")  it  was  enacted,  "that  all  leases,  estates,  interest  of 
freehold,  or  terms  of  years,  or  any  uncertain  interests  in  lands,  &c., 
made  or  executed  by  livery  and  seisin  only,  or  by  parol,  and  not 
in  writing,  and  signed  by  the  parties  so  making  and  creating  the  same, 
shall  have  the  force  and  effect  of  leases  or  estates  at  will  only ;  except- 
ing leases  for  three  years  and  less,"  &c. ;  and,  "that  no  leases,  estates, 
or  interests,  either  of  freehold,  or  terms  of  years,"  &c.  "in  any  lands," 
&c.  "shall,  at  any  time  hereafter,  be  assigned,  granted,  or  surrendered, 
unless  it  be  by  deed  or  note  in  writing  signed  by  the  party  so  assigning, 
granting,  or  surrendering  the  same,"  &c. 

Now,  it  is  contended  on  the  part  of  the  defendant,  that  the  common 
law  mode  of  conveyancing  has  been  so  modified  by  this  statute,  as  to 
destroy  the  distinction  between  an  estate  of  freehold,  and  an  estate 
less  than  a  freehold,  as  it  regards  the  mode  of  alienation;  and  that 
either  may  now  be  conveyed  by  "note  in  writing"  without  seal,  as  well 
as  by  deed. 

No  direct  decision  appears  to  have  been  made  on  this  point ;  but  in 
the  case  of  Fry  v.  Philips,  5  Burr.  2827,  and  in  the  case  of  Holliday 
v.  Marshall,  7  Johns.  211,  it  was  decided,  that  a  written  assignment  of 
a  lease  for  ninety-nine  years  was  valid,  though  not  sealed ;  upon  the  ex- 
press ground  that  it  was  the  sale  of  a  chattel-real,  for  which  the  statute 
of  frauds  requires  only  a  "note  in  writing;"  plainly  recognizing  the 
distinction  between  a  term  for  years,  and  a  freehold  estate,  as  to  the 
mode  of  conveyance. 

According  to  Sir  William  Blackstone,  (2  Black.  Com.  309,)  &c., 
sealing  was  not  in  general  use  among  our  Saxon  ancestors.  Their 
custom  was,  for  such  as  could  write,  to  sign  their  names,  and  to  affix 
the  sign  of  the  cross;  and  those  who  could  not  write,  made  their  mark 
in  sign  of  the  cross,  as  is  still  continued  to  this  day.  The  Normans 
used  the  practice  of  sealing  only,  without  writing  their  names ;  and, 
at  the  conquest,  they  introduced  into  England  waxen  seals,  instead  of 
the  former  English  mode  of  writing  their  names  and  affixing  the  sign 
of  the  cross,  it  being  then  usual  for  every  freeman  to  have  his  distinct 
and  particular  seal.  The  neglect  of  signing,  and  resting  upon  the  au- 
thenticity of  seals  alone,  continued  for  several  ages,  during  which  time 
it  was  held,  by  all  the  English  courts,  that  sealing  alone  was  sufficient. 
But  in  the  process  of  time,  the  practice  of  using  particular  and  ap- 
propriate seals,  was,  in  a  great  measure,  disused;  and  Sir  William 
Blackstone,  (2  Black.  Com.  310,)  seems  to  consider  the  statute  of  29 
Car.  II.  c.  3  (of  which  the  9th  and  10th  sections  of  our  statute  of 
Bukd.Cas.Real  Peop. — 34 


530  TITLE — IN   GENERAL 

frauds  are  a  copy)  as  reviving  the  ancient  Saxon  custom  of  signing, 
Avithout  dispensing  with  the  seal,  as  then  in  use,  under  the  custom 
derived  from  the  Normans. 

We  have  the  authority  of  that  learned  commentator,  unequivocally 
in  favor  of  the  opinion,  that  a  seal  is  indispensable,  in  order  to  convey 
an  estate  in  fee  simple,  fee  tail,  or  for  life.    2  Black.  Com.  297,  312. 

Such  seems  to  have  been  the  practical  construction,  ever  since  the 
statute  of  Car.  II,  in  England,  and  under  our  statute  of  frauds  in  this 
state ;  and  to  decide  now,  that  a  seal  is  unnecessary  to  pass  a  fee,  would 
be  to  introduce  a  new  rule  of  conveyancing,  contrary  to  the  received 
opinion,  and  almost  universal  practice  in  our  community,  and  dangerous 
in  its  retrospective  operation.  Construing  this  statute  with  reference 
to  the  preexisting  common  law,  and  the  particular  evil  intended  to  be 
remedied,  I  think  the  legislature  did  not  intend  to  dispense  with  a  seal, 
where  it  was  before  required,  as  in  a  conveyance  of  a  freehold  estate ; 
but  the  object  was  to  require  such  deeds  to  be  signed  also,  which  the 
courts  had  decided  to  be  unnecessary. 

I  construe  this  statute  as  though  the  form  of  expression  had  been 
thus :  "No  estate  of  freehold  shall  be  granted,  unless  it  be  by  deed 
signed  by  the  party  granting;  and  no  estate  less  than  a  freehold  (ex- 
cepting leases  for  three  years,  &c.)  shall  be  granted  or  surrendered, 
unless  by  deed,  or  note  in  writing  signed  by  the  grantor." 

This  venerable  custom  of  sealing,  is  a  relic  of  ancient  wisdom,  and 
is  not  without  its  real  use  at  this  day.  There  is  yet  some  degree  of 
solemnity  in  this  form  of  conveyance.  A  seal  attracts  attention,  and 
excites  caution  in  illiterate  persons,  and  thereby  operates  as  a  security 
against  fraud. 

If  a  man's  freehold  might  be  conveyed  by  a  mere  note  in  writing, 
he  might  more  easily  be  imposed  on,  by  procuring  his  signature  to 
such  a  conveyance,  when  he  really  supposed  he  was  signing  a  receipt, 
a  promissory  note,  or  a  mere  letter. 

The  plaintiff  is  entitled  to  judgment. 

Judgment  for 'the  plaintiff. 


III.  Title  by  Estoppel « 


PERKINS  v.  COLEMAN. 

(Court  of  Appeals  of  Kentucky,  1890.    90  Ky.  611,  14  S.  W.  640.) 

Appeal  from  circuit  court,  Henderson  county. 

Ejectment  by  C.  G.  Perkins  and  others,  heirs  of  N.  G.  Terry, 
against  L.  W.  Coleman  and  others.  Terry,  who  only  owned  an  un- 
divided half  interest  in  the  land,  conveyed  the  whole  of  it  to  one  Hor- 

8  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  227,  228. 

V 


TITLE    BY    ESTOPPEL  531 

ace  Durham  by  deed  of  general  warranty.  Subsequently,  Terry  in- 
nerited  the  other  half.  Defendants  claimed  that  the  deed  of  general 
warranty  estopped  plaintiffs  from  asserting  title  to  the  land,  but  de- 
fendants did  not  show  that  they  claimed  under  Durham,  either  by 
'purchase,  inheritance,  or  otherwise.  There  was  a  judgment  for  de- 
fendants, and  plaintiffs  appeal. 

BENNETT,  J.  N.  G.  Terry  owned  an  undivided  interest  in  the  land 
in  controversy,  and  conveyed  the  whole  of  it  to  Horace  Durham, 
by  deed  of  general  warranty.  Thereafter,  Terry  inherited  that  part 
of  the  land  that  he  did  not  own,  and  this  action  of  ejectment  is  brought 
by  Terry's  heirs  to  recover  the  possession  of  that  part  of  the  land, 
thus  inherited,  from  the  appellee.  He  resists  the  right  of  the  appel- 
lants to  recover  the  said  land,  upon  the  ground  that  the  title  that 
Terry  inherited  was  transferred  to  his  vendee  by  estoppel.  The  ap- 
pellants contend  that  the  doctrine  of  estoppel  does  not  protect  strang- 
ers to  the  transaction,  but  only  the  parties  and  privies  are  bound  there- 
by; and,  as  the  appellee  is  neither  party  nor  privy,  he  cannot  avail 
himself  of  the  estoppel  that  would  bar  the  appellant's  right,  as  against 
Durham,  or  his  privies. 

It  is  true  that  where  the  estoppel  merely  affects  the  consciences  of 
the  parties,  and  not  the  title,  it  does  not  operate  on  strangers  to  the 
transaction ;  but,  where  it  "works  an  interest  in  the  land"  conveyed, 
"it  runs  with  it,  and  is  a  title."  Where  it  clearly  appears  from  the 
writing  that  the  vendor  has  conveyed,  or  agrees  to  convey,  a  good  and 
sufficient  title,  and  not  merely  "his  present  interest  in  the  land,  the 
agreement  runs  with  the  land,  and  repeats  itself  every  day ;  and  if 
the  vendor,  at  the  time  of  the  conveyance,  has  not  the  title  to  the  land, 
but  subsequently  acquires  the  title,  it  "eo  instante"  inures  to  the  bene- 
fit of  the  vendee  and  his  privies.  In  other  words,  it  is  immediately 
transferred,  by  the  law  of  estoppel,  to  the  vendee  and  his  privies,  be- 
cause by  the  contract  which  daily  repeats  itself,  the  vendor's  title, 
whenever  acquired,  is  transferred  to  the  vendee  and  his  privies.  Con- 
sequently a  stranger  to  the  transaction,  in  an  action  of  ejectment  by 
the  vendor  against  him,  where  he  must  recover  upon  the  strength  of 
his  own  title,  and  not  upon  the  weakness  of  his  adversary's,  may  show 
that  he  has  thus  parted  with  his  title. 

The  judgment  is  affirmed.'^ 

7  In  accord  witli  the  holding  of  the  preceding  case  to  the  effect  that,  by  the 
doctrine  of  estoppel,  an  after-acciuired  title  is  transferred  to  the  vendee  and 
his  privies,  is  the  great  weight  of  authority.  See  Burdick,  Real  Prop.  p.  623, 
and  cases  cited.  Other  cases  hold,  however,  that  the  title  does  not  pass  to  the 
grantee,  but  that  the  effect  of  estoppel  merely  prevents  the  gi-antor  from  set- 
ting  up  his  after-acquired  title  against  the  grantee.  See  Id.  .With  reference, 
however,  to  the  decision  in  Perkins  v.  Coleman,  supra,  that  a  stranger  may 
plead  an  estoppel  in  connection  with  an  after-acquired  title,  the  weight  of  au- 
thority holds  that  the  rule  is  the  same  as  to  an  estoppel  to  assert  an  after- 
acquired  title  as  in  the  case  of  an  ordinary  estoppel  by  deed,  namely,  that 


532  TITLE — IN   GENERAL 

AYER  V.  PHILADELPHIA  &  BOSTON  FACE  BRICK  CO. 
(Supreme  Judicial  Court  of  Massacliusetts,  1893.    159  Mass.  84,  34  N.  E.  177.) 

Exceptions  from  superior  court,  Suffolk  county;  John  W.  Ham- 
mond, Judge. 

Writ  of  entry  to  foreclose  a  mortgage,  brought  by  Frederick  N. 
AyeFagainst  the  Philadelphia  &  Boston  Face  Brick  Company.  De- 
mandant obtained  judgment.  The  tenant  excepts.  Exceptions  over- 
ruled. 

Holme:s,  J.  When  the  case  was  before  us  the  first  time  (157  Mass. 
57,  31  N.  E.  717)  it  was  assumed  by  the  tenant  that  the  only  question 
was  whether  the  covenant  of  warranty  in  the  second  mortgage  should 
be  construed  as  warranting  against  the  first  mortgage.  No  attempt 
was  made  to  deny  that,  if  it  was  so  construed,  the  title  afterwards 
acquired  by  the  mortgagor  would  inure  to  the  benefit  of  the  second 
mortgagee  under  the  established  American  doctrine.  The  tenant  now 
desires  to  reopen  the  agreed  facts  for  the  purpose  of  showing  that 
after  a  breach  of  the  covenant  in  the  second  mortgage,  and  before  he 
repurchased  the  land,  the  mortgagor  went  into  bankruptcy,  and  got 
his  discharge.  The  judge  below  ruled  that  the  discharge  was  im- 
material, and  for  that  reason  alone  declined  to  reopen  the  agreed  state- 
ment, and  the  case  comes  before  us  upon  an  exception  to  that  ruling. 

The  tenant's  counsel  frankly  avow  their  own  opinion  that  the  dis- 
charge in  bankruptcy  makes  no  difference;  but  they  say  that  the 
inuring  of  an  after-acquired  title  by  virtue  of  a  covenant  of  war- 
ranty must  be  due  either  to  a  representation  or  to  a  promise  contained 
in  the  covenant,  and  that,  if  it  is  due  to  the  former, — which  they 
deem  the  correct  doctrine, — then  they  are  entitled  to  judgment  on  the 
agreed  statement  of  facts  as  it  stands,  on  the  ground  that  there  can 
be  no  estoppel  by  an  instrument  when  the  truth  appears  on  the  face 
of  it,  and  that  in  this  case  the  deed  showed  that  the  grantor  was  con- 
veying land  subject  to  a  mortgage.  If,  however,  contrary  to  their 
opinon,  the  title  inures  by  reason  of  the  promise  in  the  covenant,  or  to 
prevent  circuity  of  action,  then  they  say  the  provision  is  discharged 
by  the  discharge  in  bankruptcy. 

However  anomalous  what  we  have  called  the  "American  doctrine" 
may  be,  as  argued  by  Mr.  Rawle  and  others,  (Rawle,  Cov.,  5th  Ed.,  § 
247  et  seq.,)  it  is  settled  in  this  state  as  well  as  elsewhere.  It  is  settled 
also  that  a  discharge  in  bankruptcy  has  no  effect  on  this  operation  of 
the  covenant  of  warranty  in  an  ordinary  deed  when  the  warranty  is 

strangers  to  the  deed  are  not  bound  by  the  estoppel  neither  can  they  invoke  it. 
For  the  collected  cases,  see  16  Cyc.  710.  In  a  recent  Canadian  case,  however 
(Robertson  v.  Daley,  11  Ont.  3.^2),  it  is  held  that  estoppel  operates  against 
strangers.    See,  also,  Somes  v.  Skinner,  3  Pick.  (Mass.)  52  (1825). 


TITLE   BY    ESTOPPEL  533 

coextensive  with  the  grant.  Bush  v.  Person,  18  How.  82,  15  L.  Ed. 
273  ;  Russ  v.  Alpaugh,  118  Mass.  369,  376,  19  Am.  Rep.  464;  Gibbs  v. 
Thayer,  6  Cush.  30;  Cole  v.  Raymond,  9  Gray,  217;  Rawle,  Gov.  § 
251. 

It  would  be  to  introduce  further  technicality  into  an  artificial  doc- 
trine if  a  different  rule  should  be  applied  where  the  conveyance  is  of 
land  subject  to  a  mortgage  against  which  the  grantor  covenants  to 
warrant  and  defend.  No  reason  has  been  offered  for  such  a  distinc- 
tion, nor  do  we  perceive  any. 

But  it  is  said  that  the  operation  of  the  covenant  must  be  rested  on 
some  general  principle,  and  cannot  be  left  to  stand  simply  as  an  un- 
justified peculiarity  of  a  particular  transaction  without  analogies  else- 
where in  the  law,  and  that  this  general  principle  can  be  found  only  in 
the  doctrine  of  estoppel  by  representation,  if  it  is  held,  as  the  cases 
cited,  and  many  others,  show,  that  the  estoppel  does  not  depend  on 
personal  liability  for  damages.    Rawle,  Gov.  §  251. 

If  the  American  rule  is  an  anomaly,  it  gains  no  strength  by  being 
referred  to  a  principle  which  does  not  justify  it  in  fact  and  by  sound 
reasoning.  The  title  may  be  said  to  inure  by  way  of  estoppel  when 
explaining  the  reason  why  a  discharge  in  bankruptcy  does  not  affect 
this  operation  of  the  warranty,  but,  if  so,  the  existence  of  the  estoppel 
does  not  rest  on  the  prevention  of  fraud,  or  on  the  fact  of  a  represen- 
tation actually  believed  to  be  true.  It  is  a  technical  effect  of  a  techni- 
cal representation,  the  extent  of  which  is  determined  by  the  scope  of 
the  words  devoted  to  making  it.  A  subsequent  title  would  inure  to  the 
grantor  when  the  grant  was  of  an  unincumbered  fee,  although  the 
parties  agreed  by  parol  that  there  was  a  rhortgage  outstanding,  (Gham- 
berlain  v.  Meeder,  16  N.  H.  381,  384.  See  Jenkins  v.  Gollard,  145  U. 
S.  546,  560,  12  Sup.  Ct.  868,  36  L.  Ed.  812)  and  this  shows  that  the 
estoppel  is  determined  by  the  scope  of  the  conventional  assertion,  not 
by  any  question  of  fraud  or  of  actual  belief.  But  the  scope  of  the  con- 
ventional assertion  is  determined  by  the  scope  of  the  warranty  which 
contains  it.  Usually  the  warranty  is  of  what  is  granted,  and  therefore 
the  scope  of  it  is  determined  by  the  scope  of  the  description ;  but  this 
is  not  necessarily  so,  and  when  the  warranty  says  that  the  grantor  is 
to  be  taken  as  assuring  you  that  he  owns  and  will  defend  you  in  the 
unincumbered  fee,  it  does  not  matter  that  by  the  same  deed  he  avows 
the  assertion  not  to  be  the  fact.  The  warranty  is  intended  to  fix  the 
extent  of  responsibility  assumed,  and  by  that  the  grantor  makes  him- 
self answerable  for  the  fact  being  true.  In  short,  if  a  man  by  a  deed 
says,  "I  hereby  estop  myself  to  deny  a  fact,"  it  does  not  matter  that  he 
recites  as  a  preliminary  that  the  fact  is  not  true.  The  difference  be- 
tween a  warranty  and  an  ordinary  statement  in  a  deed  is  that  the 
operation  and  effect  of  the  latter  depend  on  the  whole  context  of  the 
deed,  whereas  the  warranty  is  put  in  for  the  express  purpose  of  es- 
topping the  grantor  to  the  extent  of  its  words.    The  reason  "why  the 


534  TITLE — IN   GENERAL 

estoppel  should  operate  is  that  such  was  the  obvious  intention  of  the 
parties."    Blake  v.  Tucker,  12  Vt.  39,  45. 

If  a  general  covenant  of  warranty  following  a  conveyance  of  only 
the  grantor's  right,  title,  and  interest  were  made  in  such  a  form  that  it 
was  construed  as  more  extensive  than  the  conveyance,  there  would 
be  an  estoppel  coextensive  with  the  covenant.  See  Blanchard  v. 
Brooks,  12  Pick.  47,  66,  67;  Bigelow,  Estop.  (5th  Ed.)  403.^  So  in  the 
case  of  a  deed  by  an  heir  presumptive  of  his  expectancy  with  a  cove- 
nant of  warranty.  In  this  case,  of  course,  there  is  no  pretense  that 
the  grantor  has  a  title  coextensive  with  his  warranty.  Trull  v.  East- 
man, 3  Mete.  (Mass.)  121,  124,  37  Am.  Dec.  126.  In  Lincoln  v.  Emer- 
son, 108  Mass.  87,  a  first  mortgage  was  mentioned  in  the  covenant 
against  incumbrances  in  a  second  mortgage,  but  was  not  excepted  from 
the  covenant  or  warranty.  The  title  of  the  mortgagor  under  a  fore- 
closure of  the  first  mortgage  was  held  to  inure  to  an  assignee  of 
the  second  mortgage.  Here  the  deed  disclosed  the  truth,  and  for  the 
purposes  of  the  tenant's  argument  it  cannot  matter  what  part  of  the 
deed  discloses  the  truth,  unless  it  should  be  suggested  that  a  covenant 
of  warranty  cannot  be  made  more  extensive  than  the  grant,  which  was 
held  not  to  be  the  law  in  our  former  decision.  See,  also,  Calvert  v. 
Sebright,  15  Beav.  156,  160. 

The  question  remains  whether  the  tenant  stands  better  as  a  pur- 
chaser without  actual  notice,  assuming  that  he  had  not  actual  notice  of 
the  second  mortgage. 

"It  has  been  the  settled  law  of  this  commonwealth  for  nearly  forty 
years  that,  under  a  deed  with  covenants  of  warranty  from  one 
capable  of  executing  it,  a  title  afterwards  acquired  by  the  grantor  in- 
ures by  way  of  estoppel  to  the  grantee,  not  only  as  against  the  gran- 
tor, but  also  as  against  one  holding  by  descent  or  grant  from  him 
after  acquiring  the  new  title.  Somes  v.  Skinner,  3  Pick.  52 ;  White 
v.  Patten.  24  Pick.  324;  Russ  v.  Alpaugh,  118  Mass.  369,  376,  19  Am. 
Rep.  464.  We  are  aware  that  this  rule,  especially  as  applied  to  subse- 
(juent  grantees,  while  followed  in  some  states,  has  been  criticised  in 
others.  See  Rawle,  Cov.  (4th  Ed.)  427  et  seq.  But  it  has  been  too 
long  established  and  acted  on  in  Massachusetts  to  be  changed  except 
bv  legislation."  Knight  v.  Thaver,  125  Mass.  25,  27;  Powers  v.  Pat- 
ten, 71  Me.  583,  587,  589;  McCusker  v.  McEvey,  9  R.  I.  528.  11  Am. 
Rep.  295  ;   Tefft  v.  Munson,  ':,7  N.  Y.  97. 

It  is  urged  for  the  tenant  this  rule  should  not  be  extended ;  but  if 
it  is  a  bad  rule  that  is  no  reason  for  making  a  bad  exception  to  it. 
As  the  title  would  have  inured  as  against  a  subsequent  purchaser  from 
the  mortgagor  had  his  deed  made  no  mention  of  the  mortgage,  and 
as  by  our  decision  his  covenant  of  warranty  operates  by  way  of  es- 
toppel, notwithstanding  the  mention  of  the  mortgage,  no  intelligible- 
reason  can  be  stated  why  the  estoppel  should  bind  a  purchaser  without 
actual  notice  in  the  former  case,  and  not  bind  him  in  the  latter. 


TITLE   BY    ADVERSE    POSSESSION  535 

Upon  the  whole  case  we  are  of  opinion  that  the  demandant  is 
entitled  to  judgment.  Our  conclusion  is  in  accord  with  the  decision 
in  a  very  similar  case  in  Minnesota.  jNIanufacturing  Co.  v.  Zellmer, 
48  Minn.  408,  51  N.  W.  379. 

ExcepJions  overruled. 


IV.  Title  by  Adverse  Possession  ^ 
1.  Requisites  for  Title  by  Adverse  Possession* 


WARD  V.  COCHRAN. 

(Supreme  Court  of  United  States.  1S93.    150  U.  S.  597,  14  Sup.  Ct.  2.30, 

37  L.  Ed.  1195.) 

In  error  to  the  circuit  court  of  the  United  States  for  the  district  of 
Nebraska.     Reversed. 

Statement  by  Mr.  Justice  Shiras: 

This  was  an  action  of  ejectment  brought  'at  November  term,  1887, 
in  the  circuit  court  of  the  United  States  for  the  district  of  Nebraska, 
by  Seth  E.  Ward,  a  citizen  of  the  state  of  Missouri,  against  Elmer 
G.  Cochran,  a  citizen  of  the  state  of  Nebraska,  to  recover  the  posses- 
sion of  20  acres  of  land  situated  in  the  suburbs  of  the  city  of  Omaha, 
and  described  as  the  W.  %  of  the  N.  E.  %  of  section  4,  township  15 
N.,  range  13  E.,  in  Douglas  county.  Neb. 

In  pursuance  of  the  practice  in  that  state,  under  which  two  trials  in 
ejectment  are  necessary  to  a  final  determination  of  a  question  of  title, 
a  trial  was  had  before  a  judge,  without  a  jury,  and  a  judgment  was 
entered  in  favor  of  the  defendant.  This  judgment  was  forthwith,  on 
motion  of  the  plaintiff,  set  aside,  and  a  new  trial  was  awarded. 

At  this  trial  the  record  discloses  that  the  plaintiff  sustained  his  side 
of  the  issue  by  putting  in  evidence  a  chain  of  title  from  the  United 
States  to  himself,  consisting  of  a  patent  of  the  United  States  to  Alex- 
ander R.  McCandlers,  dated  Marc^  13,  1861,  for  a  tract  of  land,  in- 
cluding the  piece  in  dispute ;  a  deed  of  Alexander  R.  McCandlers  to 
Michael  Thompson,  dated  May  2,  1861,  for  the  same  tract;  a  deed  of 
Michael  Thompson  and  wife  to  Edward  B.  Taylor,  dated  July  5,  1862, 
for  said  tract ;  a  mortgage  of  Edward  B.  Taylor,  to  Ward,  the  plain- 
tiff, dated  July  28,  1871,  on  the  20-acre  tract  in  controversy,  to  secure 
the  payment  of  certain  promissory  notes;  the  record  of  proceedings 
in  suit  by  Ward,  the  plaintiff',  against  the  heirs  and  legal  representa- 
tives of  Edward  B.  Taylor,  who  had  died  in  1872,  to  foreclose  said 
mortgage,  and  a  sheriff's  deed,  under  decree  in  said  suit,  to  Ward,  the 
plaintiff,  dated  July  11,  1877;  a  deed  of  Edward  A.  Taylor  (son  and 

»  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  229-232. 


536  TITLE IN   GENERAL 

one  of  the  heirs  of  Edward  B.  Taylor,  and  the  only  heir  who  had  not 
been  made  a  party  to  the  foreclosure  suit)  to  Ward,  the  plaintiff,  dated 
June  25,  1885,  for  the  20-acre  tract  in  dispute.  It  was  admitted  that 
the  value  of  the  land  was  $20,000  at  the  time  of  the  bringing  of  the 
suit. 

The  defendant  adduced  evidence  tending  to  show  that  one  John 
Flanagan  had  entered  on  the  tract  in  dispute  in  1868,  under  a  parol 
sale  of  said  tract  to  him  by  Edward  B.  Taylor;  that  Flanagan  had 
continued  in  possession  of  the  tract  until  1885,  when,  on  November 
25th  of  that  year,  Flanagan  and  wife  conveyed  the  tract  to  the  defend- 
ant by  deed  of  that  date,  who  entered  into  possession. 

On  December  9,  1889,  the  jury  rendered  a  special  verdict,  in  the  fol- 
lowing words  and  figures : 

"We,  the  jury  impaneled  and  sworn  to  try  the  issues  joined  in  the 
above-entitled  cause,  do  find  and  say  that  one  John  Flanagan,  in  the 
year  1868,  entered  into  the  possession  of  the  west  one-half  of  the 
northeast  quarter  of  the  southwest  quarter  of  section  4,  in  township 
15  north,  of  range  13th  east  of  the  6th  principal  meridian,  in  Douglas 
county,  Nebraska,  being  the  land  in  controversy  in  this  case,  under  a 
claim  of  ownership  thereto,  and  that  he  remained  in  the  open,  contin- 
ued, notorious,  and  adverse  possession  thereof  for  the  period  of  sixteen 
(16)  years  thereafter,  and  until  he  sold  and  transferred  the  same  to 
the  defendant  in  this  case. 

"We  further  find  that  said  John  Flanagan  and  Julia,  his  wife,  by 
good  and  lawful  deed  of  conveyance,  conveyed  said  premises  to  the 
defendant  in  this  suit  in  1885,  and  surrendered  his  possession  to  this 
defendant,  and  that  said  defendant  has  remained  in  the  open,  con- 
tinuous, notorious,  and  adverse  possession  of  the  same  under  claim 
of  ownership  down  to  the  present  time.  We  therefore  find  that  at 
the  commencement  of  this  suit  the  defendant  was  the  owner  of  and 
entitled  to  the  possession  of  the  said  premises,  and  upon  the  issues 
joined  in  this  case  we  find  for  said  defendant." 

On  December  9,  1887,  the  plaintiff,  by  his  counsel,  moved  for  a  new 
trial  for  reasons  filed,  and  on  the  same  day  moved  the  court  for  judg- 
ment in  his  behalf  notwithstanding,  the  verdict. 

On  December  5,  1889,  the  motion  for  a  new  trial  was  overruled, 
and  judgment  was  entered  in  favor  of  the  defendant  in  pursuance  of 
the  verdict;  and  to  said  judgment  a  writ  of  error  to  this  court  was 
sued  out  and  allowed, 

Mr.  Justice  Shiras,  after  stating  the  facts  in  the  foregoing  lan- 
guage, delivered  the  opinion  of  the  court.    *     *    *  » 

This  was  an  action  of  ejectment  for  the  recovery  of  a  tract  of  land 
of  which  the  boundaries  and  situation  were  not  matters  of  dispute.  It 
was  conceded  that  both  parties  claimed  to  derive  title  from  one  E.  B. 
Taylor,  and  that  the  plaintiff's  evidence  sufficed  to  entitle  him  to  re- 

»  I'nrt  of  fiie  opinion  Is  omitted. 


TITLE   BY  ADVERSE   POSSESSION  537 

<:over,  unless  such  right  of  recovery  was  overcome  by  the  defendant's 
claim  of  an  adverse  possession  of  a  character  and  duration  sufficient, 
under  the  laws  of  Nebraska,  to  create  a  good  title. 

The  record  discloses  that  the  judge  instructed  the  jury  to  make  a 
finding  of  special  facts,  that  the  jury  did  so,  that  the  plaintiff  moved 
for  judgment  in  his  favor  upon  the  verdict,  that  the  defendant  did 
likewise,  and  that  the  court  sustained  the  defendant's  motion,  and 
entered  judgment  in  his  favor. 

The  following  are  the  statutory  provisions  of  Nebraska  relating  to 
verdicts : 

"Sec.  292.  The  verdict  of  a  jury  is  either  general  or  special.  A 
general  verdict  is  that  by  which  they  pronounce  generally  upon  all  or 
any  of  the  issues,  either  in  favor  of  the  plaintiff  or  defendant.  A  spe- 
cial verdict  is  that  by  which  the  jury  finds  the  facts  only.  It  must 
present  the  facts  as  established  by  the  evidence,  and  not  the  evidence 
to  prove  them,  and  they  must  be  so  presented  as  that  nothing  remains 
to  the  court  but  to  draw  from  them  conclusions  of  law. 

"Sec.  293.  In  every  action  for  the  recovery  of  money  only,  or  specific 
real  property,  the  jury,  in  their  discretion,  may  render  a  general  or 
special  verdict.  In  all  other  cases  the  court  may  direct  the  jury  to  find 
a  special  verdict  in  writing,  upon  all  or  any  of  the  issues ;  and  in  all 
cases  may  instruct  them,  if  they  render  a  general  verdict,  to  find  upon 
particular  questions  of  fact  to  be  stated  in  writing,  and  may  direct  a 
written  finding  thereon.  The  special  verdict  or  finding  must  be  filed 
with  the  clerk  and  entered  on  the  journal. 

"Sec.  294.  When  the  special  finding  of  facts  is  inconsistent  with  the 
general  verdict,  the  former  controls  the  latter,  and  the  court  may  give 
judgment  accordingly." 

Comp.  St.  Neb.  1887. 

The  action  of  the  court  below  in  rendering  judgment  on  the  special 
verdict  in  favor  of  the  defendant  forms  the  subject  of  the  first  as- 
signment of  error.  The  plaintiff's  contention  is  that  the  special  ver- 
dict did  not  warrant  a  judgment  in  favor  of  the  defendant,  because  it 
did  not  find  that  the  possession  on  which  the  defendant  relied  was 
actual  and  exclusive. 

No  state  statute  has  been  referred  to  as  regulating  or  defining  title 
by  adverse  possession,  and,  indeed,  it  is  stated  in  the  brief  of  defend- 
ant in  error  that  there  is  no  such  statute ;  but  there  is  a  statutory  pro- 
vision that  an  action  for  the  recovery  of  the  title  or  possession  of  lands, 
tenements,  or  hereditaments  can  only  be  brought  within  10  years  after 
the  cause  of  such  action  shall  have  accrued. 

Our  investigation,  therefore,  into  the  sufficiency  of  the  special  ver- 
dict, must  be  controlled  by  the  principles  established,  in  this  branch  of 
the  law,  by  the  decisions  of  the  courts,  particularly  those  of  the  su- 
preme court  of  the  state  of  Nebraska  and  of  this  court. 

In  French  v.  Pearce,  8  Conn.  440,  21  Am.  Dec.  680,  it  was  said  that 
"it  is  the  fact  of  exclusive  occupancy,  using  and  enjoying  the  land  as 


538  TITLE IK   GENERAL 

his  own,  in  hostility  to  the  true  owner,  for  the  full  statutory  period, 
which  enables  the  occupant  to  acquire  an  absolute  right  to  the  land." 

In  Sparrow  v.  Hovey,  44  Mich.  63,  6  N.  W.  93,  a  refusal  of  the 
court  to  charge  that,  when  the  title  is  claimed  by  an  adverse  possession, 
it  should  appear  that  the  possession  had  been  "actual,  continued,  visi- 
ble, notorious,  distinct,  and  hostile,"  but  merely  charging  the  jury 
that  the  possession  "must  be  actual,  continued,  and  visible,"  was  held 
erroneous.  In  Pennsylvania  it  has  been  repeatedly  held  that,  to  give 
a  title  under  the  statute  of  limitations,  the  possession  must  be  "actual, 
visible,  exclusive,  notorious,  and  uninterrupted."  Johnston  v.  Irwin, 
3  Serg.  &  R.  291 ;  Mercer  v.  Watson,  1  Watts,  338;bverfield  v.  Chris- 
tie, 7  Serg.  &  R.  173. 

In  Jackson  v.  Berner,  48  111.  203,  it  was  held  that  an  adverse  pos- 
session sufficient  to  defeat  the  legal  title,  where  there  is  no  paper  title, 
must  be  hostile  in  its  inception,  and  is  not  to  be  made  out  by  infer- 
ence, but  by  clear  and  positive  proof ;  and,  further,  that  the  possession 
must  be  such  as  to  show  clearly  that  the  party  claims  the  land  as  his 
own,  openly  and  exclusively. 

In  Foulke  v.  Bond,  41  N.  J.  Law,  527,  it  was  said :  "The  principles 
on  which  the  doctrine  of  title  by  adverse  possession  rests  are  well  set- 
tled. The  possession  must  be  actual  and  exclusive,  adverse  and  hostile, 
visible  and  notorious,  continued  and  uninterrupted." 

It  was  held  in  Cook  v.  Babcock,  11  Cush.  (Mass.)  208,  that,  "when 
a  party  claims  by  a  disseisin  ripened  into  a  good  title  by  the  lapse  of 
time  as  against  the  legal  owner,  he  must  show  actual,  open,  exclusive, 
and  adverse  possession  of  the  land.  All  these  elements  are  essential 
to  be  proved,  and  failure  to  establish  any  one  of  them  is  fatal  to  the 
validity  of  the  claim." 

In  Armstrong  v.  Morrill,  14  Wall.  120,  20  L.  Ed.  765,  this  court, 
speaking  through  Mr.  Justice  Clifford  said:  "It  is  well-settled  law 
that  the  possession,  in  order  that  it  may  bar  the  recovery,  must  be  con- 
tinuous and  uninterrupted,  as  well  as  open,  notorious,  actual,  ex- 
clusive, and  adverse.  Such  a  possession,  it  is  conceded,  if  continued 
without  interruption  for  the  whole  period  which  is  prescribed  by  the 
statute  for  the  enforcement  of  the  right  of  entry,  is  evidence  of  a  fee, 
and  bars  the  right  of  recovery.  Independently  of  positive  statute  law, 
such  a  possession  affords  a  presumption  that  the  claimants  to  the  land 
acquiesce  in  the  claim  so  evidenced."  Hogan  v.  Kurtz,  94  U.  S.  JIZ, 
24  L.  Ed.  317,  is  to  the  same  effect. 

The  authorities  in  Nebraska  are  substantially  to  the  same  effect  on 
questions  of  title  by  adverse  possession. 

A  leading  case  is  Horbach  v.  Miller,  4  Neb.  31,  in  which  it  was  said 
that  "the  elements  of  all  title  are  possession,  the  right  of  possession, 
and  the  right  of  property;  hence  if  the  adverse  occupant  has  maintain- 
ed an  exclusive  adverse  possession  for  the  full  extent  of  the  statutory 
limit,   the  statute  then  vests  him  with   the  right  of  property,  which 


TITLE    BY    ADVERSE    POSSESSl-:/N 


539 


■carries  with  it  the  right  of  possession,  and  therefore  the  title  becomes 
complete  in  him.  *  "^^  *  The  submission  of  the  case  to  the  jury 
correctly  was  that  if  they  believed  from  the  evidence  that  the  plaintiff 
in  error,  for  ten  years  next  before  the  commencement  of  the  action, 
was  in  the  actual,  continued,  and  notorious  possession  of  the  land  in 
controversy,  claiming  the  same  as  his  own  against  all  persons,  they 
must  find  for  the  plaintiff  in  error."  In  Catling  v.  Lane,  17  Neb.  17 , 
22  N.  W.  227,  the  language  used  was :  "A  person  who  enters  upon  the 
land  of  another  with  the  intention  of  occupying  the  same  as  his  own, 
and  carries  that  intention  into  effect  by  open,  notorious,  exclusive,  ad- 
verse possession  for  ten  years,  thereby  disseises  the  owner."  In  Par- 
ker V.  Starr,  21  Neb.  680,  33  N.  W.  424,  a  recovery  was  sustained 
where  the  testimony  clearly  showed  that  "the  defendant  and  those 
under  whom  he  claims  have  been  in  the  open,  notorious,  and  exclusive 
possession  for  ten  years  next  before  the  suit  was  brought."  In  Bal- 
lard V.  Hansen,  ZZ  Neb.  861,  51  N.  W.  295,  the  following  instruc- 
tions, which  had  been  given  in  the  trial  court,  were  approved  by  the 
■supreme  court:  "The  jury  are  instructed  that  adverse  possession,  as 
relied  upon  by  the  plaintiffs  in  this  action,  is  the  open,  actual,  exclusive, 
notorious,  and  hostile  occupancy  of  the  land  and  claim  of  right,  with 
the  intention  to  hold  it  as  against  the  true  owner  and  all  other  par- 
ties. Such  occupancy,  if  continuous  for  ten  years,  ripens  into  a  per- 
fect title,  after  which  it  is 'immaterial  whether  the  possession  be  con- 
tinued or  not."  "If  you  find,  from  a  preponderance  of  the  testimony 
in  this  case,  that  the  plaintiff  was  in  the  actual,  open,  notorious,  exclu- 
sive, continuous  possession  of  any  of  the  lots  in  controversy  for  ten 
y^ars,  claiming  to  own  and  hold  them  as  against  all  others,  as  to  such 
lots  he  is  entitled  to  recover." 

Tested  by  these  definitions,  it  is  obvious  that  if  the  title  relied  on 
in  this  case  by  the  defendant  below  was  fully  described  and  character- 
ized by  the  special  verdict,  it  was  defective  in  two  very  essential  par- 
ticulars in  that  it  was  not  found  to  have  been  actual  and  exclusive.  A 
possession  not  actual,  but  constructive ;  not  exclusive,  but  in  participa- 
tion with  the  owner  or  others, — falls  very  far  short  of  that  kind  of 
adverse  possession  which  deprives  the  true  owner  of  his  title. 

Where  a  special  verdict  is  rendered,  all  the  facts  essential  to  entitle 
a  party  to  a  judgment  must  be  found,  and  a  judgment  rendered  on  a 
special  verdict  failing  to  find  all  the  essential  facts  is  erroneous. 

In  Prentice  v.  Zane's  Adm'r,  8  How.  470,  12  L.  Ed.  1160,  it  was 
said:  "In  Insurance  Co.  v.  Stark,  6  Cranch,  268  [3  L.  Ed.  220],  and 
Barnes  v.  Williams,  11  Wheat.  415  [6  L.  Ed.  508],  this  court  has  de- 
cided that  where,  in  a  special  verdict,  the  essential  facts  are  not  dis- 
tinctly found  by  the  jury,  although  there  is  sufiicient  evidence  to  es- 
tablish them,  the  court  will  not  render  a  judgment  upon  such  an  imper- 
fect special  verdict,  but  will  remand  the  cause  to  the  court  below,  with 
directions  to  award  a  venire  de  novo." 


540  TITLE IN   GENERAL 

In  Hodges  v.  Easton,  106  U.  S.  408,  1  Sup.  Ct.  307,  27  L.  Ed.  169, 
where  it  was  contended  that  an  imperfect  special  verdict  might  be 
pieced  out,  and  the  missing  facts  be  supplied  by  reference  to  the  other 
parts  of  the  record,  the  same  conclusion  was  reached,  and  the  court 
below  was  directed  to  award  a  new  trial. 

In  the  present  case,  even  if  the  verdict  were  regarded  as  a  gen- 
eral one,  and  therefore  entitled  to  be  supported  by  the  presumption  that 
sufficient  facts  existed  to  sustain  it,  yet  we  should  feel  constrained 
to  reverse  the  judgment,  because  of  the  errors  complained  of  in  the 
8th,  9th,  and  10th  assignments. 

The  plaintiff's  counsel  requested  the  court  to  charge  the  jury  that, 
in  order  that  possession  of  land  may  overcome  the  title  of  the  true 
owner,  "there  must  be  a  concurrence  of  the  following  elements :  Such 
possession  must  be  actual,  hostile,  exclusive,  open,  notorious,  and  con- 
tinuous for  the  whole  period  of  ten  years.  Every  element  in  this  enu- 
meration is  absolutely  essential,  and,  if  one  of  these  elements  does  not 
exist,  there  can  be  no  adverse  title  acquired," — and  the  court  did  so 
charge ;  but  the  court  then  proceeded  to  say  that,  after  having  dis- 
posed of  the  written  instructions,  "I  propose  to  go  outside  of  what  is 
there  stated,  and  give  one  on  my  own  motion."  Those  voluntary  in- 
structions given  by  the  learned  judge,  though  correct  is  most  respects, 
were  imperfect  in  the  very  particulars  in  which  we  have  found  the 
special  verdict  defective.  The  jury  were  not  told  that,  to  make  out 
the  defense,  the  possession,  in  addition  to  certain  other  features  prop- 
erly specified,  must  be  shown  to  have  been  actual  and  exclusive.  This 
clearly  appears  in  the  final  instruction,  which  was  in  the  following 
terms : 

"But  if  you  take  the  other  view,  and  find  that  defendant  has  a  good 
title,  and  that  he  is  entitled  to  recover,  then  I  think  you  ought  to  go 
further,  and  find  the  fact  that  he  entered  into  the  possession  of  the 
premises  at  a  certain  time,  or  as  near  as  you  can  fix  it  from  the  testi- 
mony; that  he  occupied  the  premises;  that  he  continued  in  possession 
for  more  than  ten  years  prior  to  the  commencement  of  this  suit,  which 
was  December  4,  1886.  You  ought  to  find,  if  you  can,  from  the  testi- 
mony, about  the  time  that  he  went  into  possession,  whether  he  con- 
tinued in  possession,  and  whether  his  possession  was  adverse,  contin- 
uous, and  hostile  prior  to  the  commencement  of  this  suit,  or  whether 
Flanagan  and  his  grantees,  defendants  in  this  suit,  continued  in  pos- 
session that  long;  it  is  the  same  as  if  Flanagan  was  in  possession 
that  long  himself. 

"If  you  find  for  the  defendant, 'find  when  he  took  possession,  if 
you  can,  and,  as  near  as  you  can,  how  long  he  remained  in  possession 
before  the  commencement  of  this  suit.  Then  your  verdict  will  be,  in 
addition  to  that  'We  therefore  find  that  at  the  commencement  of  this 
suit  the  defendant  was  the  owner  and  entitled  to  the  immediate  pos- 
session of  the  premises  in  dispute.'  That  disposes  of  the  whole  con- 
troversy as  far  as  the  verdict  of  the  jury  is  concerned." 


TITLE  BY   ADVERSE   POSSESSION  541 

Nor  do  we  think  that  this  is  one  of  those  cases  in  which  erroneous 
or  insufficient  instructions  in  one  part  of  a  charge  are  corrected  or 
suppHed  by  unobjectionable  instructions  on  the  same  questions,  ap- 
pearing in  another  part.  It  is  evident  that  the  attention  of  the  jury 
must  have  been  withdrawn  from  the  instructions  formally  given,  as 
requested,  to  those  announced  by  the  judge  as  given  on  his  own  mo- 
tion, and  it  seems  evident  that  this  action  of  the  court  misguided  the 
jury,  and  led  them  to  overlook  essential  questions  involved  in  the  is- 
sue they  were  trying.  Smith  v.  Shoemaker,  17  Wall.  630,  21  L.  Ed. 
717;  Moores  v.  Bank,  104  U.  S.  625,  26  L.  Ed.  870;  Gilmer  v.  Hig- 
ley,  110  U.  S.  47,  3  Sup.  Ct.  471,  28  L.  Ed.  62;  Railroad  Co.  v. 
O'Brien,  119  U.  S.  103,  7  Sup.  Ct.  118,  30  L.  Ed.  299. 

Whether,  then,  we  regard  the  verdict  as  a  special  one,  not  con- 
taining findings  sufficient  to  support  the  judgment,  or  as  a  general  one 
rendered  in  pursuance  of  imperfect  instructions,  we  reach  the  con- 
clusion that  the  judgment  of  the  court  below  must  be  reversed,  and  the 
cause  remanded,  with  instructions  to  award  a  venire  de  novo. 


AYERS  v.  REIDEIv. 

(Supreme  Court  of  Wisconsin,  1893.    84  Wis.  276,  54  N.  W.  588.) 

Appeal  from  circuit  court,  Clark  county ;  A.  W.  Newman,  Judge. 

Ejectment  by  Martin  V.  Ayers  against  John  Reidel.  Plaintiff  had 
judgment,  and  defendant  appeals.     Affirmed. 

The  other  facts  fully  appear  in  the  following  statement  by  Fin- 
ney, J. : 

Ejectment  for  a  strip  of  land,  "part  of  the  southeast  quarter  of  the 
northwest  quarter  of  section  number  10,  on  the  east  side  thereof,  about 
five  rods  wide  at  the  north  end  and  about  two  rods  wide  at  the  south 
end,  about  thirty  rods  long,  and  being  all  that  portion  of  said  forty- 
acre  tract  lying  west  of  the  east  line  thereof,  and  east  of  a  fence 
claimed  by  defendant  to  be  a  line  fence,  but  which  is  from  two  to 
five  rods  west  of  the  true  east  line  of  said  premises,  and  which  fence 
runs  north  and  south."  The  defendant  is  the  owner  of  the  northeast 
quarter  of  said  section,  the  southwest  quarter  thereof  lying  directly 
east  of  the  plaintiff's  said  40-acre  tract;  and  he  claimed  title  to  the 
strip  in  question  under  a  continued  adverse  possession  for  more  than 
20  years  before  the  commencement  of  the  action,  during  which  he 
claimed  to  have  occupied  it  under  claim  of  title  thereto.  The  plain- 
tiflf  purchased  his  40-acre  tract  in  the  fall  of  1875,  and  it  was  in  the 
main  woodland,  and  was  and  has  since  been  used  for  pasturage  pur- 
poses. He  resided  on  a  40-acre  tract  immediately  south  of  it,  and 
bought  both  tracts  of  one  Brown,  who  had  owned  and  occupied  the 
premises  for  some  years  previously.  At  that  time  it  was  all  forest 
there.     When  the  defendant  settled  on  his  tract  he  commenced  cul- 


542  TITLE — IN   GENERAL 

tivating-  on  the  west  side  of  the  southwest  quarter  of  the  northeast 
quarter,  immediately  east  of  the  southeast  quarter  of  the  northwest 
quarter,  owned  by  the  plaintiff;  the  first  year  making  an  opening  of 
about  5  acres,  which  was  increased  from  time  to  time  the  whole  length 
of  the  40.  The  defendant  built  a  log  fence  in  1867  on  the  line  be- 
tween the  parties.  It  was  not  built  very  straight  along  the  40,  but 
diverged  at  the  north  end  about  10  rods  to  the  west.  It  was  not  made 
all  at  once,  but  from  time  to  time,  as  the  clearing  was  opened.  It 
appeared  that  it  was  a  forest  country,  just  being  settled,  and  the  land 
was  somewhat  uneven ;  that  no  survey  had  been  made  of  the  lands  on 
this  section  since  the  public  survey,  until  1889,  when  it  was  surveyed 
at  the  request  and  in  the  interest  of  the  owners  of  the  lands  on  said 
section,  all  contributed  to  the  expense.  It  then  appeared  that  a  strip 
of  the  land  so  opened  and  cleared  by  defendant,  varying  in  width  from 
1  to  8  or  10  rods,  was  found  to  be  on  the  lands  of  the  plaintiff,  and 
it  has  been  opened  and  cultivated  by  the  defendant,  and  used  and  oc- 
cupied by  him  for  a  period  of  about  23  years  before  the  action  was 
commenced. 

About  the  time  the  plaintiff  purchased  his  40  in  question,  the  log 
fence  was  destroyed  by  fire,  and  the  defendant  built  a  rail  fence 
extending  across  the  whole  40  from  north  to  south,  the  plaintiff'  fur- 
nishing some  trees  to  make  rails  of.  The  plaintiff"  and  defendant 
talked  about  building  that  fence,  and  the  defendant  said  it  was  on  the 
line.  Plaintiff  supposed  that  he  built  it  for  a  line  fence.  In  respect 
toTthis  the  plaintiff  testified,  in  substance,  "that  the  defendant  said 
it  was  the  line,  and  that  he  said  he  did  not  know  anything  about  it. 
The  land  had  never  been  surveyed  until  1889,  when  it  was  surveyed 
by  one  Stockwell.  That  they  never  had  any  idea  where  the  land  was 
until  it  was  so  surveyed.  That  he  did  not  believe  the  claim  of  the 
defendant  as  to  its  being  the  line.  That  he  made  no  objections  to  the 
fence  being  built,  but  that  they  talked  time  and  again  about  having 
it  surveyed,  to  know  where  the  line  was ;"  but  this  was  denied  by 
defendant.  The  defendant  claimed  he  had  a  starting  point  on  the 
road  where  the  quarter  post  was,  and  that  a  surveyor,  named  Red- 
dan,  about  16  or  18  years  before  the  suit  was  commenced,  made  a 
survey  of  an  east  and  west  line,  through  the  center  of  the  section, 
for  highway  purposes,  and  put  up  a  post,  which  it  is  said  he  stated 
was  the  center  of  the  section,  but  it  did  not  appear  that  he  made  any 
completed  survey  of  any  tract  on  the  section,  and  did  not  run  any 
line  north  and  south  between  the  plaintift''s  and  defendant's  lands. 
The  rail  fence  was  not  on  a  straight  line,  but  turned  to  the  westward 
in  like  manner  as  the  log  fence,  and  was  further  to  the  west  than  the 
log  fence  was.  It  was  not  continuous,  but  for  a  space  of  some  80 
feet  there  was  nothing  except  a  pile  of  stone,  6  or  8  feet  wide,  in 
lieu  of  the  fence.  This  fence  was  not  straight,  but  was  irregular. 
The  plaintiff's  40  acres  to  the  south  had  been  cleared  over  across  the 


TITLE   BY    ADYEKSE   POSSESSION  543 

line  to  the  east  about  the  same  distance  relatively  that  the  defendant 
had  cleared  and  fenced  over  on  plaintiff's  40.  It  appeared  that  when 
Stockwell  made  his  survey  he  succeeded  in  finding  the  quarter  sec- 
tion stakes  on  each  side  of  the  section.  There  was  no  testimony  to 
show  what,  if  anything,  had  occurred  between  the  defendant  and 
Bowman,  plaintiff's  grantor,  in  regard  to  the  premises,  or  whether 
he  was  aware  that  the  defendant  had  cleared  over  the  line.  The  de- 
fendant testified  that  "Bowman  came  to  his  house,  and  he  went  to 
Bowman's,  and  he  did  not  say  anything;  never  made  any  complaint 
in  regard  to  the  fence  not  being  on  the  line."  The  rail  fence  was 
built  in  1876.  The  defendant  further  testified  that  "during  all  the 
twenty-two  years  of  his  occupancy  he  supposed  the  land  was  his  that 
he  was  cultivating  and  improving,  and  that  no  one  ever  claimed  dif- 
ferent until  the  trouble  with  Mr.  Ayers,  after  the  survey;  that  he 
believed  in  good  faith  that  the  strip  in  question  was  on  his  land ;  that 
he  helped  to  pay  for  the  Stockwell  survey ;  that  he  claimed  the  land 
by  virtue  of  his  patent," — and,  being  asked  if  he  intended  to  claim 
any  land  except  what  was  described  in  it,  answered,  "No ;  all  that 
is  mine."  There  was  a  conflict  of  testimony  as  to  the  width  of  the 
disputed  strip. 

After  the  Stockwell  survey  was  made,  in  1889,  the  plaintiff  built  a 
wire  fence  on  the  south  half  of  the  line  between  him  and  defendant, 
and  the  defendant  in  like  manner  built  a  wire  fence,  about  10  rods 
in  length,  on  the  north  end  of  the  north  half  of  the  line.  Before 
building  the  wire  fences  the  defendant  proposed  to  plaintiff  that  they 
should  build  a  good  fence;  that  they  had  better  put  up  a  good  fence, 
— ^to  which  he  responded,  "  'I  will  build  just  as  good  a  fence  as  you 
will.'  He  thought  a  five-wire  fence  would  be  sufficient,  and  we.  would 
not  have  any  trouble  with  the  cattle."  The  strip  in  dispute  lies  be- 
tween said  portions  of  wire  fence,  and  is  about  30  rods  in  length; 
and  there  is  the  same  fence  on  the  west  side  of  it  that  was  built  in 
the  spring  of  1876,  but  in  a  dilapidated  condition.  The  parties  had  an 
angry  controversy  with  regard  to  the  cutting  of  some  grass  by  plain- 
tiff on  the  strip  in  question  in  the  year  1889,  after  the  survey,  and  a 
somewhat  irritating  lawsuit  concerning  it. 

The  defendant,  at  the  close  of  the  plaintiff's  testimony,  moved  for 
a  nonsuit,  on  the  ground  that  the  plaintiff  had  not  established  any 
title;  that  the  strip  of  land  claimed  was  not  described  with  sufficient 
certainty;  that  the  fence  built  15  years  before  was  built  by  agree- 
ment between  the  parties,  and  they  had  practically  settled  where  the 
line  was,  outside  of  any  question  as  to  adverse  possession  under  the 
statute  of  limitations.  But  the  court  overruled  the  motion,  holding 
that  the  question  of  agreement  as  to  location  of  the  fence  was  for  the 

jury- 

The  court  charged  the  jury  that  the  plaintiff  was  entitled  to  recover 
the  controverted  strip  of  land,  unless  the  defendant  had  succeeded  in 


544  TITLE IN   GENERAL 

establishing  his  defense;  "that  the  evidence  established,  without  con- 
tradiction, the  line  surveyed  by  Stockvvell  to  be  the  true  line." 

As  to  the  question  of  location  of  the  fence,  and  building  it  by 
agreement,  the  court  charged  "that  the  defendant  did  not  claim  any 
positive  agreement,  but  that  the  plaintiff  had,  acquiesced  in  his  loca- 
tion of  the  line  for  a  long  number  of  years,  and  that  the  question 
was  whether  tlie  evidence  susjtained  the  position  that  the  plaintiff 
acquiesced  for  a  long  number  of  years  in  the  establishment  of  the 
boundary  line,  or  whether  he  objected  to  it,  and  insisted  upon  the 
establishment  of  it  by  a  surveyor;  that,  if  he  did  rely  and  acquiesce 
in  this  location  for  fifteen  years,  then  he  ought  to  be  bound  by  it; 
and  that,  if  the  evidence  did  not  satisfy  them  that  he  had  acquiesced 
during  all  these  years,  then  the  jury  would  not  give  the  effect  of  an 
agreement  to  that  evidence.''  ^ 

As  to  the  defense  of  the  statute  of  limitations  the  court  said :  "In 
order  that  it  should  give  him  a  title,  it  must  be  true  that  he  had  been 
holding  the  land,  for  twenty  years  or  more,  adversely  to  the  adjoin- 
ing proprietor;  and  that  depends  in  a  measure  upon  what  he  thought 
in  his  own  mind  about  it,  and  presents  the  question,  what  did  he 
intend  when  he  built  that  fence  there?  Did  he  intend  to  claim  up 
to  that  fence  absolutely,  or  did  he  intend  that  as  a  provisional  line, 
to  be  verified  thereafter  when  a  surveyor  found  it,  and  to  conform  his 
line  to  that?  If  he  intended  to  make  his  title  absolute  to  the  line,  his 
possession  would  be  adverse.  If  he  intended  it  only  as  provisional 
until  the  true  line  was  definitely  ascertained,  or  could  be  in  the  future, 
then  his  possession  was  not  adverse.  You  are  to  determine  from  all 
the  circumstances,  and  from  all  that  has  been  shown  in  evidence,  what 
his  idea  was  at  the  time  when  he  first  entered  upon  this  land  and 
built  this  fence.  He  must  have  had  the  purpose  to  acquire  the  title 
to  the  land  adversely  as  against  the  adjoining  owner  during  at  least 
twenty  years,  and  it  would  make  no  difference,  if  he  did  not  enter 
upon  it  with  this  intention,  that  he  changed  his  mind  afterwards,  un- 
less, after  he  had  changed  his  mind,  and  determined  to  hold  adversely, 
he  then  held  adversely  the  full  twenty  years.  So  that  is  all  the  ques- 
tion,— whether  it  was  adverse.  That  depends  upon  the  defendant's 
purpose,  what  the  law  calls  the  'quo  animo,'  with  which  he  entered, — 
whether  it  was  to  hold  it  adversely,  or  whether  it  was  merely  tentative 
or  provisional,  depending  upon  where  the  true  line  should  be  after- 
wards ascertained  to  be;  that  the  burden  of  proof  was  on  the  de- 
fendant to  satisfy  the  jury  that  this  line  was  located  by  agreement, 
as  explained,  or  the  defendant  has  held  the  land  for  full  twenty  years 
adversely." 

Plaintiff  had  a  verdict  for  the  strip  claimed ;  and  a  motion  for  a 
new  trial  on  the  ground  that  the  verdict  was  against  the  evidence  and 
contrary  to  law,  and  for  error  of  the  court  in  its  charge  to  the  jury, 


TITLE   BY   ADVERSE   POSSESSION  545 

was  denied,  and  '  from  the  j  udgment  entered  on  the  verdict  the  de- 
fendant appealed. 

PiNNEY,  j.,  (after  stating  the  facts.)  1.  The  circuit  court  properly 
ruled  that  the  evidence  established  the  line  surveyed  by  Stockwell  as 
the  true  line  between  the  parties.  The  only  objection  urged  is  that 
there  was  evidence  before  the  jury  of  what  is  called  the  "Reddan 
Survey,"  which  was  materially  different  from  the  line  as  determined 
by  Stockwell.  All  the  evidence  concerning  the  Reddan  survey  was 
hearsay,  and  it  does  not  appear  that  any  record  or  plat  was  made  of 
it,  and  he  was  not  called  to  prove  it,  or  to  show  how  or  in  what  man- 
ner he  determined,  if  at  all,  the  center  of  the  section.  He  did  not 
make  any  survey  of  the  line  in  dispute,  nor  does  it  appear  that  he 
made  a  survey  of  any  tract  in  the  section,  but  whatever  he  did  was 
in  relation  to  surveying  a  road  for  the  town. 

2.  It  is  contended  that  the  court  erred  in  refusing  to  direct  a  ver- 
dict for  the  defendant — First,  on  the  ground  that  the  undisputed 
evidence  showed  that  the  defendant  had  held  continuous  and  adverse 
possession  of  the  premises  under  claim  of  title  for  more  than  20 
years  before  the  commencement  of  the  action ;  and,  second,  that  it 
conclusively  appeared  that  the  boundary  line  in  question  had  been- 
settled  hy  acquiescence  more  than  15  years  before  the  action  was 
brought.  What  constitutes  adverse  possession  is  for  the  court  to  de- 
termine, but  the  facts  which  establish  it  are  for  the  jury,  and  the 
question  of  the  character  of  the  possession  is  generally  submitted  to 
them.  Gross  v.  Welwood,  90  N.  Y.  638.  It  was  for  the  jury  to  say 
what  was  the  real  character  of  the  defendant's  possession  of  the  strip 
in  dispute,  and  whether  it  was  taken  and  maintained  with  an  inten- 
tion by  the  defendant  to  oust  the  true  owner, — whether  it  was  adverse 
to  him  in  fact.  To  constitute  adverse  possession  there  must  be  the 
fact  of  possession  and  the  hostile  intention, — the  intention  to  usurp 
possession;  and,  if  there  be  possession  of  land  by  one  not  the  true 
owner,  the  presumption  of  law  is  that  such  possession  is  in  accord  or 
amity  with,  and  in  subservience  to,  the  true  title  and  legal  possession 
of  the  owner.  Dhein  v.  Beuscher,  83  Wis.  316,  53  N.  W.  554; 
Schwallback  v.  Railway  Co.,  69  Wis.  298,  34  N.  W.  128,  2  Am.  St. 
Rep.  740;  Hacker  v.  Hoflemus,  74  Wis.  21,  41  N.  W.  965;  Harvey 
V.  Tyler,  2  Wall.  349,  17  L.  Ed.  871.  The  whole  inquiry  is  reduced 
to  the  fact  of  entering,  and  the  intention  to  usurp  possession.  Probst 
V.  Trustees,  129  U.  S.  191,  192,  9  Sup.  Ct.  263,  32  L.  Ed.  642.  Per- 
missive possession  is  never  a  basis  for  the  statute  of  limitations,  and 
the  rule  is  that  evidence  of  adverse  possession  must  be  strictly  con- 
strued, and  every  presumption  is  in  favor  of  the  true  owner,  and 
that  the  defendant  entered  under  his  conveyance,  and  that  his  posses- 
sion is  only  coextensive  with  "his  title,  and  restricted  to  the  premises 
granted  by  it.    Sydnor  v.  Palmer,  29  Wis.  252 ;   Graeven  v.  Dieves,  68 

Burd.Cap.TIe  vl  Prop. — 35 


546  TITLE — IX   GENERAL 

Wis.  31'7,  31  N.  W.  914;  Fairfield  v.  Barrette,  7Z  Wis.  468,  41  N. 
W.  624. 

The  instructions  of  the  circuit  court  on  the  question  of  adverse  pos- 
session were  as  favorable  to  the  defendant  as  the  law  would  justify, 
and  the  jury  were  properly  instructed  that,  "whether  the  defendant's 
possession  was  adverse  depended  upon  the  quo  animo  with  which  he 
entered  upon  the  land ;  whether  it  was  to  hold  it  adversely,  or  whether 
it  was  merely  tentative  or  provisional,  depending  upon  where  the  true 
line  should  be  afterwards  ascertained  to  be."  Whether  the  entry  of 
defendant,  and  his  continued  possession,  were  an  ouster  of  the  plain- 
tiff and  his  grantor,  or  were  merely  in  subordination  to  the  plaintiff, 
or  permissive,  was  a  question  of  fact  for  the  jury.  Hacker  v.  Horle- 
tnus,  74  Wis.  25,  41  N.  W.  965.  It  is  to  be  remembered  that  the  facts 
relied  on  by  the  defendant  to  make  out  an  adverse  possession  are  in 
a  great  degree  equivocal,  owing  to  the  condition  of  the  country,  and 
the  entire  want  of  any  information  in  relation  to  the  location  of  the 
center  of  section  10,  and  of  the  true  line  between  the  tracts  in  ques- 
tion; and  there  is  no  claim  of  any  knowledge  until  the  survey  of  the 
road  by  Reddan,  which  was  much  less  than  20  years  before  this  ac- 
tion was  commenced ;  and  there  is  an  entire  absence  of  testimony 
tending  to  show  that  the  defendant's  possession  of  the  strip  was  in 
fact  adverse  to  Brown,  the  plaintiff's  grantor,  who  conveyed  to  the 
latter  about  15  years  before  the  suit.  There  was  testimony  also  that 
the  plaintiff  and  defendant  had  often  talked  of  having  a  survey  made, 
to  ascertain  where  the  line  was ;  but  this  was  denied  by  the  defend- 
ant. Such  survey  was  in  fact  made  in  1889,  and  it  appears  to  have 
proceeded  upon  unquestioned  data,  and  the  defendant  acquiesced  in  it 
so  far  as  to  build  10  rods  of  fence  on  the  north  part  of  the  line  at  a 
point  where  his  cultivation  of  the  strip  on  plaintiff's  land  was  widest, 
and  he  suffered  the  plaintiff,  without  objection,  so  far  as  appears,  to 
build  a  new  fence  for  40  rods  on  the  south  end  of  the  line  established 
by  the  survey.  But  for  the  irritation  and  temper  growing  out  of  a 
petty  suit  about  some  grass  cut  on  this  strip  in  the  summer  of  1890, 
it  is  possible,  and  perhaps  probable,  the  surveyed  line  would  have  been 
acquiesced  in  as  final. 

While  it  is  true  that,  if  the  defendant  had  acquired  title  to  the  strip 
in  question  by  adverse  possession  prior  to  the  survey  in  1889,  he 
would  not  have  lost  it  by  any  of  his  subsequent  parol  declarations  or 
acts,  yet  his  acts  in  conforming  to  or  acquiescing  in  that  survey  were 
competent  evidence  upon  the  intent  with  which  he  had  occupied,  and 
as  tending  to  show  that  his  possession  had  been  provisional  or  permis- 
sive, and  not  adverse.  The  jury,  in  view  of  all  the  facts  and  circum- 
stances, might  well  say  that  the  old  fence  was  not  intended  as  a 
permanent  boundary,  but  was  built  and  maintained  as  a  matter  of  con- 
venience until  the  true  line  should  be  ascertained,  and  that  the  de- 
fendant's possession  of  the  strip  in   question  had  not  been  adverse 


TITLE    BY   ADVERSE    POSSESSION  547 

for  20  years  before  the  suit  was  commenced.  While  possession,  oc- 
cupation, and  improvements  for  several  years,  with  the  knowledge 
of  the  true  owner,  may  be  prima  facie  evidence  of  adverse  possession, 
yet  they  are  not  conclusive,  and  may  be  explained  and  rebutted  by 
proof  of  facts  showing  that  the  possession  was  not  in  fact  adverse, 
(Worcester  v.  Lord,  56  Me.  265,  96  Am.  Dec.  456;  Dow  v.  McKen- 
ney,  64  Me.  138;  Lamb  v.  Coe,  15  Wend.  [N.  Y.]  642;)  that  it  was 
permissive  or  provisional,  and  without  the  intention  in  fact  of  claim- 
ing or  acquiring  title. 

There  is  no  room  for  contending  that  there  was  any  express  agree- 
ment between  the  parties  whereby  the  old  rail  fence  was  built  for  and 
was  to  be  a  boundary  between  the  estates.  The  most  that  can  fairly 
be  claimed  is  that  what  occurred  in  view  of  the  lapse  of  time  tended 
to  show  as  an  inference  that  there  was  such  agreement,  and  that  the 
fence  had  become  a  settled  boundary  by  acquiescence.  This  question, 
like  that  of  adverse  possession,  was  one  of  fact  for  the  jury,  and  it 
was  left  to  them  under  instructions  free  from  objection.  The  ver- 
dict of  the  jury  is  supported  by  the  evidence.  There  is  no  preponder- 
ance of  evidence  against  it,  and  the  motion  for  a  new  trial  was  prop- 
erly denied. 

3.  It  is  objected  that  the  description  of  the  land  in  the  complaint 
is  fatally  uncertain  and  defective.  The  description  that  it  is  "all  of 
the  described  forty  lying  west  of  the  east  line  thereof,  and  east  of  a 
fence  from  two  to  five  rods  west  of  the  true  east  line,  and  which  fence 
runs  north  and  south,"  is  sufficient.  It  is  sufficient  if,  by  the  aid  of 
a  competent  surveyor,  and  persons  knowing  the  monuments  or  ob- 
jects mentioned  as  boundaries,  the  lands  can  be  found;  and  this  is 
in  accordance  with  Orton  v.  Noonan,  18  Wis.  447. 

It  follows  that  the  judgment  of  the  circuit  court  must  be  afifirmed. 
The  judgment  of  the  circuit  court  is  affirmed. 


ILLINOIS  CENT.  R.  CO.  v.  HOUGHTON. 

(Supreme  Court  of  Illinois,  1888.    126  111.  233,  18  N.  E.  301,  1  L.  R.  A.  213, 

9  Am.  St.  Rep.  581.) 

Appeal  from  circuit  court,  McLean  county ;  Owen  T.  Reeves,  Judge. 

Bailey,  J.  This  was  an  action  of  ejectment,  brought  by  the  Illinois 
Central  Railroad  Company  against  Stephen  Houghton  and  James 
Houghton,  to  recover  two  strips  of  land,  each  50  feet  in  width,  the 
one  70  and  the  other  80  rods  in  length,  being  a  part  of  section  22, 
township  23  N.,  of  range  2  E.,  in  McLean  county,  and  adjoining,  the 
one  on  the  east  and  the  other  on  the  west,  the  strip  of  land  100  feet  in 
width  heretofore  occupied  by  the  plaintiff  as  its  right  of  way.  The 
trial,  which  was  had  before  the  court  without  a  jury,  resulted  in  a 
finding  and  judgment  in  favor  of  the  defendants,  and  the  plaintiff 
brings  the  record  to  this  court  by  appeal. 


548  TITLE IN    GENERAL 

On  the  29th  day  of  April,  1852,  as  seems  to  be  conceded,  William 
Walker  was  the  owner  in  fee  of  the  80-acre  tract  which  includes  the 
two  tracts  in  controversy.  The  plaintiff's  proof  of  title  consists  of  a 
deed  executed  by  said  Walker  and  wife,  dated  April  29,  ^852,  con- 
veying to  the  plaintiff  "for  the  purpose  of  constructing,  maintaining, 
and  operating  thereon  a  single  or  double  track  railroad,  with  all  its 
necessary  appurtenances,  and  for  all  uses  and  purposes  connected  with 
the  construction,  repair,  maintenance,  and  complete  operation  of  said 
railroad,  the  right  of  way  over  and  through  said  tract,"  said  right  of 
way  to  comprise  land  of  the  width  of  100  feet  on  each  side  of  said 
railroad ;  to  have  and  to  hold  the  same  to  the  plaintiff'  and  its  succes- 
sors and  assigns  forever  "for  all  lawful  uses  and  purposes  incident  to 
a  full  and  indefeasible  title  in  fee-simple,  or  in  any  way  connected  with 
the  construction,  preservation,  occupation,  and  sole  enjoyment  of  said 
road  and  lands,  of  the  width  aforesaid."  The  deed  also  contained  a 
covenant  on  the  part  of  the  plaintiff  to  erect  and  maintain  such  law- 
ful fences  as  would  divide  the  lands  occupied  by  the  plaintiff  from  the 
adjoining  lands  on  each  side,  and  as  far  as  possible  prevent  intru- 
sion upon  or  passage  across  the  lands  and  railroad  occupied  by  the 
plaintiff.  It  appears  that  the  plaintiff,  shortly  after  the  execution  of 
this  deed,  erected  substantial  post  and  board  fences,  so  as  to  inclose 
its  right  of  way  of  the  width  of  only  100  feet,  leaving  the  two  strips 
of  land  now  in  controversy  outside  of  its  fences.  Walker  joined  his 
farm  fences  with  the  fences  inclosing  the  railroad,  and  occupied  and 
used  said  two  strips  of  land  the  same  as  he  did  the  residue  of  his 
farm;  and  the  evidence  tends  to  show  that  he  did  so  claiming  to  be 
the  owner.  Said  land  was  partly  under  cultivation,  partly  in  grass, 
and  in  part  covered  with  timber,  and  Walker  cut  some  of  the  timber 
and  grazed  and  cultivated  the  land  not  covered  with  timber,  and  con- 
tinued in  possession  of  the  land  as  a  part  of  his  farm  until  November 
28,  1855,  at  which  time  he  conveyed  it  to  George  and  James  Park; 
said  conveyance  being  by  its  terms  made  'Vibject  to  the  right  of  way 
of  the  Illinois  Central  Railroad  Company,  as  heretofore  deeded  by 
said  party  of  the  first  part  to  said  railroad  company." 

George  and  James  Park  went  into  possession  under  said  deed,  and 
used  the  land  the  same  as  Walker  had  done.  James  Park  died,  and 
John  E.  Park,  his  sole  heir  at  law,  conveyed  his  interest  in  the  farm  to 
George  Park,  by  deed  dated  March  18,  1869.  George  Park  continued 
in  possession  until  1871  or  1872,  when  he  died,  leaving  several  heirs. 
On  the  28th  day  of  June,  1873,  the  administrator  of  George  Park  sold 
and  conveyed  that  portion  of  the  farm  west  of  the  railroad  to  Stephen 
Houghton  in  pursuance  of  an  order  of  the  county  court  of  McLean 
county,  and  prior  to  making  such  sale  the  administrator  had  the  land 
surveyed  up  to  the  railroad  fence,  and  sold  it  all  to  Houghton  by  the 
acre.  Houghton  and  his  son  James  took  immediate  possession  of  the 
land  under  said  deed,  and  have  ever  since  been  in  possession  of  the 
same,  claiming  to  own  it.    They  have  also  during  the  same  time  been 


TITLE    BY   ADVERSE    POSSESSION  549 

in  possession  of  the  strip  of  land  on  the  east  side  of  the  raih-oad 
as  tenants  of  the  heirs  of  George  Park,  having  rented  that  portion 
of  the  farm  east  of  the  railroad.  The  railroad  fences  remained  where 
they  were  originally  built  from  1853  down  to  some  time  in  the  year 
1886.  On  several  occasions  during  that  time,  fire  from  the  railroad 
engines  burned  down  portions  of  said  fences,  and  also  destroyed  the 
cross-fences  and  crops  on  the  land  in  controversy,  and  the  plaintiff  on 
each  occasion  rebuilt  the  railroad  fences,  and  paid  the  adjoining  pro- 
prietors the  damages  done  upon  said  lands.  In  1886  the  plaintiff  took 
down  said  railroad  fences,  and  erected  new  fences  50  feet  further  from 
its  railroad  track ;  thus  entering  and  taking  possession  of  the  land  in 
controversy.  Stephen  Houghton  thereupon  brought  his  action  of 
forcible  entry  and  detainer,  and  recovered  possession  of  said  land, 
and  then  the  plaintiffs  brought  this  suit. 

By  the  declaration  the  plaintiff  claims  an  estate  in  fee.  and  as  the 
evidence  tends  only  to  establish  the  plaintiff's  title  to  an  easement  in 
the  premises  sued  for  in  the  nature  of  a  right  of  way,  it  is  urged  that 
no  recovery  could  be  had,  upon  the  principle  that  where  a  plaintiff 
claims  in  fee  he  cannot  recover  a  less  estate.  We  do  not  deem  it  nec- 
essary to  determine  whether  this  rule  applies,  since  there  is  another 
ground  upon  which  the  judgment  must  be  affirmed,  which  seems  to 
us  to  be  entirely  satisfactory.  The  fact  is  established  beyond  con- 
troversy that  from  the  time  the  railroad  fences  were  built  down  to 
the  date  of  the  plaintiff's  entry  in  1886,  a  period  of  about  33  years, 
the  defendants  and  the  grantors  through  whom  they  derived  their 
title  were  in  the  actual,  continuous,  visible,  open  and  exclusive  posses- 
sion of  the  land  sued  for ;  and  it  seems  too  clear  for  serious  doubt  that 
such  possession  was  adverse  to  the  plaintiff.  The  deed  under  which 
the  plaintiff  claims  required  the  plaintiff  to  erect  and  maintain  fences 
dividing  its  right  of  way  from  the  adjoining  lands,  and  it  will  be  pre- 
sumed that  the  fences  were  erected  in  pursuance  of  that  requirement. 
Walker  continued  in  possession  up  to  the  fences,  claiming  them  as  his 
boundary  lines,  and  claiming  to  have  established  such  lines  by  com- 
promise with  the  plaintiff.  The  deed  from  Walker  to  George  and 
James  Park,  it  is  true,  was  made  subject  to  the  plaintiff's  right  of  way 
as  deeded  by  Walker  to  the  plaintiff,  but  they  took  and  held  posses- 
sion precisely  as  Walker  had  done,  up  to  the  fences  which  Walker 
claimed  as  his  boundary  lines.  Park's  administrator  sold  the  land  on 
the  west  side  of  the  railroad  by  metes  and  bounds,  making  the  fence 
the  boundary  line,  and  since  1873  the  defendants  have  been  in  pos- 
session of  the  lands  on  both  sides  of  the  railroad,  claiming  title  up  to 
the  railroad  fences. 

To  constitute  an  adverse  possession  sufficient  to  defeat  the  right  of 
action  of  the  party  who  has  the  legal  title,  the  possession  must  be  hos- 
tile in  its  inception,  and  so  continued  without  interruption  for  the 
period  of  20  years.  It  must  be  an  actual,  visible,  and  exclusive  pos- 
session, acquired  and  retained  under  claim  of  title  inconsistent  with 


550  TITLE IX    GENERAL 

that  of  the  true  owner.  It  need  not,  however,  be  under  a  rightful 
claim,  nor  even  under  a  muniment  of  title.  It  is  enough  that  a  party 
takes  possession  of  premises,  claiming  them  as  his  own,  and  that  he 
holds  possession  for  the  requisite  length  of  time,  with  the  continual 
assertion  of  ownership.  Turney  v.  Chamberlain,  15  111.  271.  It  is  not 
essential,  however,  that  there  should  be  proof  that  the  party  in  pos- 
session made  oral  declarations  of  claim  of  title,  but  it  is  sufficient  if 
the  proof  shows  that  he  has  so  acted  as  to  clearly  indicate  that  he  did 
claim  title.  No  mere  words  could  more  satisfactorily  assert  a  claim 
of  title  than  a  continued  exercise  of  acts  of  ownership  over  the  prop- 
erty for  a  period  of  more  than  20  years.  Using  and  controlling  prop- 
erty as  owner  is  the  ordinary  mode  of  asserting  a  claim  of  title,  and  it ' 
is  indeed  the  only  proof  of  which  a  claim  of  title  to  a  very  large  pro- 
portion of  property  is  susceptible.  James  v.  Railroad  Co.,  91  111.  554. 
But  it  is  insisted  that  the  plaintiff's  right  of  way,  being  a  mere  ease- 
ment,— the  fee  remaining  in  Walker  and  his  grantees,  subject  to  the 
easement, — the  possession  of  Walker  and  his  grantees  is  to  be  re- 
garded as  being  held  under  their  title,  and  therefore  not  hostile  to  the 
plaintiff,  so  as  to  constitute  it  an  adverse  possession.  To  this  view 
we  are  unable  to  yield  our  assent.  If  the  right  of  way  of  a  railroad 
company  were  an  easement,  the  proper  enjoyment  of  which  was  con- 
sistent wuth  the  possession  and  occupancy  of  the  land  by  the  owner  of 
the  fee,  such  possession  and  occupancy  might  be  regarded  as  a  mere 
exercise  by  the  owner  of  the  servient  estate  of  his  property  rights, 
subject  and  in  subordination  to  the  easement.  Such,  however,  is  not 
the  character  of  the  easement  which  a  railroad  company  acquires  in 
the  land  covered  by  its  right  of  way.  As  said  in  Hazen  v.  Railroad 
Co.,  2  Gray  (Mass.)  574:  "The  right  acquired  by  the  corporation, 
though  technically  an  easement,  yet  requires  for  its  enjoyment  a  use 
of  the  land  permanent  in  its  nature,  and  practically  exclusive."  The 
same  view  was  taken  by  the  supreme  court  of  Vermont  in  Hurd  v. 
Railroad  Co.,  25  Vt.  116,  where,  in  discussing  the  interest  obtained  by 
a  railroad  company  in  its  right  of  way  by  condemnation,  the  court 
say :  "If  that  interest  is  regarded  as  a  mere  servitude  or  easement,  the 
land  nevertheless  becomes  so  far  the  property  of  the  corporation  that 
their  right  is  exclusive  in  its  use  and  possession  during  its  existence,  as 
much  so  as  that  of  the  owner  or  occupant  of  the  adjoining  land.  Those 
from  whom  the  land  was  taken  retain  no  right  to  its  use  or  occupation 
for  pasturage  or  otherwise.  The  object  for  which  it  is  appropriated 
and  used  is  wholly  inconsistent  with  such  right  on  the  part  of  the 
former  owner,  as  well  as  with  that  security  to  themselves  and  safety  to 
the  public  which  is  necessary  to  enable  the  corporation  to  enjoy  the 
franchises  granted  by  their  ciiarter."  In  Jackson  v.  Railroad  Co.,  25 
Vt.  150,  60  Am.  Dec.  246,  the  same  court,  speaking  through  Mr.  Chief 
Justice  Redfield,  says :  "The  railway  company  must,  from  the  very  na- 
ture of  their  operations,  in  order  to  the  security  of  their  passengers 
and  workmen,  and  the  enjoyment  of  the  road,  have  the  right  at  all 


TITLE   BY   ADVERSE   POSSESSION  551 

times  to  the  exclusive  occupancy  of  the  land  taken,  and  to  exclude 
all  concurrent  occupancy  by  the  former  owners  in  any  mode,  and  for 
any  purpose."  Railroad  Co.  v.  Potter,  42  Vt.  265,  1  Am.  Rep.  325 ; 
Railway  Co.  v.  Allen,  22  Kan.  285,  31  Am.  Rep.  190. 

In  Railroad  Co.  v.  Godfrey,  71  111.  500,  22  Am.  Rep.  112,  this  court 
held  that  the  right  of  way  was  the  exclusive  property  of  the  railroad 
company,  upon  which  no  unauthorized  person  had  a  right  to  be  for  any 
purpose ;  and  in  the  opinion  of  this  court  in  Railroad  Co.  v.  Patchin, 
16  111.  198,  61  Am.  Dec.  65,  it  is  said:  "I  presume  the  right  to  the 
land  upon  which  railroads  are  built  is  not  strictly  analogous  to  the 
easement  of  the  public  in  highways,  leaving  the  fee  in  the  owner  of 
the  soil,  but  is  an  absolute  ownership  in  fee  for  railroad  purposes.'' 
While  we  are  not  disposed  to  hold  that  the  deed  from  Walker  to  the 
plaintiff  conveyed  to  the  plaintiff'  an  estate  in  fee  in  the  right  of  way,  it 
is  clear  that  in  conveying  an  estate  which,  so  far  as  the  right  of  pos- 
session for  railroad  purposes  is  concerned,  had  most  of  the  qualities  of 
the  fee.  The  right  of  possession  thereby  conveyed  was  exclusive,  and 
was  wholly  inconsistent  with  the  subsequent  possession  of  the  land  or 
any  part  of  it  by  thef  grantor  or  his  assigns  for  the  purposes  of  grazing 
or  agriculture,  or  as  a  part  of  the  farm  to  which  it  originally  belonged. 
The  possession  of  Walker  and  his  assigns,  being  wholly  inconsistent 
with  the  plaintiff's  title,  and  having  been  held  under  a  claim  of  title  on 
their  part,  has  been  hostile,  and  has  constituted  an  adverse  possession ; 
and,  such  possession  having  been  continued  for  more  than  20  years,  the 
plaintiff's  right  to  bring  its  action  for  the  recovery  of  said  lands  is 
barred  by  the  statute. 

The  finding  of  the  court  was  therefore  in  accordance  with  the  evi- 
dence, and  the  judgment  must  be  affirmed. 


GORDON  v.  SIMMONS. 

(Court  of  Appeals  of  Kentucky,  1910.     136  Ky.  273,  124  S.  W.  306, 

Ann.  Cas.  1912A,  305.) 

Appeal  from  Circuit  Court,  Trigg  County. 

"To  be  officially  reported." 

Action  by  Bettie  Gordon  and  others  against  W.  F.  Simmons.  Judg- 
ment for  defendant.  Plaintiffs  appeal.  Reversed  and  remanded  for 
new  trial. 

Settle,  J.  The  appellant  Bettie  Gordon,  widow,  and  others,  heirs 
at  law  of  A.  J.  Gordon,  deceased,  brought  suit  in  the  court  below  to 
recover  of  the  appellee,  W.  J.  Simmons,  a  parcel  of  land  described 
in  the  petition,  which  they  claim  to  own  and  allege  to  be  wrongfully 
in  appellee's  possession;  also  to  recover  of  the  latter  damages  for  its 
unlawful  detention  and  use. 

It  appears  from  the  record  that  A.  J.  Gordon  became  the  owner  in 
1894  of  a  100-acre  tract  of  land  known  as  the  "House  survev."    In- 


552  TITLE — IX    GENERAL 

eluded  within  the  lines  of  the  House  sun^ey,  though  not  a  part  thereof, 
was  a  50-acre  tract  known  as  the  "Turner  Mashburn  or  Boren  sur- 
vey." Appellants  live,  as  did  A.  J.  Gordon  at  the  time  of  his  death, 
upon  the  House  100-acre  survey.  Appellee  owns  and  is  in  possession 
of  the  50-acre  Turner  Mashburn  or  Boren  survey.  The  land  appel- 
lants seek  to  recover  consists  of  about  20  acres  of  the  House  survey 
alleged  to  be  wrongfully  held  by  appellee. 

It  is  alleged  in  the  petition  that  a  controversy  arose  between  ap- 
pellants and  the  appellee,  Simmons,  shortly  before  the  institution  of 
the  action  as  to  the  location  of  the  lines  of  their  respective  lands,  in 
which  controversy  appellee  was  setting  up  claim  to  the  20  acres  of 
the  House  survey  in  question  by  virtue  of  an  alleged  exchange  there- 
of by  A.  J.  Gordon,  deceased,  with  appellee's  remote  vendor,  Boren, 
for  14  acres  of  the  Turner  Mashburn  50-acre  survey,  and  also  to  the 
14  acres  last  mentioned  as  well,  and  that,  in  order  to  settle  the  con- 
troversy without  suit,  appellants  and  appellee  entered  into  a  written 
agreement,  whereby  appellants  released  to  appellee  all  that  part  or 
parcel  of  land  known  as  the  Turner  Mashburn  survey,  in  considera- 
tion of  which  appellee  obligated  himself  to  release  and  surrender  to 
appellants  all  that  part  of  the  House  survey  claimed  by  him,  the  orig- 
inal line  of  both  the  House  and  Turner  Mashburn  surveys  to  be  as- 
certained by  a  survey  to  be  made  by  the  surveyor  of  Trigg  county, 
each  party  to  pay  one-half  the  costs  of  such  survey;  that,  pursuant 
to  this  agreement,  the  lines  of  the  House  and  Turner  Mashburn  sur- 
veys were  run  and  established  by  the  surveyor  of  Trigg  county  as 
claimed  by  appellants,  but  that,  notwithstanding  such  agreement  and 
settlement  of  the  controversy  between  the  parties,  appellee,  in  viola- 
tion thereof,  took  possession  of  the  20  acres  of  the  House  survey 
which  he  had  agreed  to  surrender  to  appellants,  and  proceeded  to 
cultivate  same. 

Appellee  by  answer  attempted  to  justify  his  holding  of  the  20  acres 
of  the  House  land  upon  the  ground  that  his  remote  vendor,  Boren, 
while  owner  of  the  50-acre  tract  of  land,  made  a  verbal  swap  or 
exchange  of  14  acres  thereof  to  A.  J.  Gordon,  then  owner  of  the 
House  lOO-acre  tract,  for  the  20  acres  of  the  latter  tract  in  contro- 
versy, and  that,  pursuant  to  such  exchange,  Boren  and  Gardner  estab- 
lished an  agreed  line  between  the  lands  exchanged,  and  each  sur- 
rendered to  the  other,  without  executing  deeds  therefor,  the  land 
received  in  the  exchange.  It  was  further  alleged  in  the  answer  that 
appellee  and  his  vendors  immediate  and  remote  have  had  and  held 
the  actual  adverse  possession  of  the  20  acres  received  by  Boren  in 
the  exchange  with  Gordon  for  more  than  fifteen  years  before  the  in- 
stitution of  appellants'  action,  which  it  was  claimed  entitled  appellee 
to  rely  upon  the  statute  of  limitations  in  bar  of  the  action ;  the  stat- 
ute being  duly  pleaded.  It  was  further  alleged  in  appellee's  answer 
that  he  signed   and   acknowledged   the   writing  referred  to   without 


TITLE   BY   ADVERSE    POSSESSION  553 

knowledge  of  its  contents  and  by  the  fraud  and  procurement  of  the 
appellant  Bettie  Gordon  and  her  agent,  A.  S.  Ford. 

Appellants  by  reply  controverted  the  affirmative  matter  of  the  an- 
swer. The  trial  resulted  in  a  verdict  and  judgment  in  appellee's  favor, 
and  appellants,  having  been  refused  a  new  trial  by  the  circuit  court, 
prosecute  this  appeal. 

It  appears  from  the  evidence  found  in  the  record,  and  is  conceded 
by  the  parties,  that  when  appellee's  remote  vendor,  Boren,  owned  the 
50-acre  Turner  Mashburn  land,  he  and  A.  J.  Gordon  attempted  a 
verbal  exchange  of  lands ;  that  is,  Boren  agreed  to  exchange  with 
Gordon,  then  owner  of  the  100-acre  House  survey,  14  acres  of  the 
Turner  Mashburn  land  for  20  acres  of  the  House  land,  and  that  Boren 
and  Gordon  at  the  time  marked  a  dividing  line  across  the  Turner 
Mashburn  land  from  the  south  to  the  north  boundary  of  the  House 
tract  on  either  side  of  the  Turner  Mashburn  land,  which  left  the  14 
acres  received  by  Gordon  in  the  exchange  east  of  the  division  line, 
and  the  20  acres  received  by  Boren  west  of  that  line.  The  evidence 
is  not  definite  as  to  when  or  to  what  extent  either  Gordon  or  Boren 
asserted  possession  over  the  land  received  by  him  in  the  exchange. 
It  is  clear,  however,  that  neither  made  a  deed  to  the  other,  but  ap- 
parent that  appellants  were  willing  after  appellee  acquired  the  Turner 
Mashburn  or  Boren  land  to  let  the  exchange  as  made  by  A.  J.  Gordon 
and  appellee  stand.  With  this,  however,  appellee  according  to  the 
evidence  did  not  appear  satisfied,  for  he  set  up  claim  to  the  14  acres 
received  by  Gordon  in  the  exchange  as  well  as  the  20  acres  thereby 
received  by  Boren.  This  state  of  case  raised  the  controversy  between 
appellee  and  appellants  resulting  in  the  written  agreement  whereby 
the  previous  exchange  of  lands  between  A.  J.  Gordon  and  Boren  was 
ignored,  and  the  parties  obligated  themselves  that  appellants  should 
hold  the  House  land  of  100  acres  according  to  the  lines  thereof  to 
be  established  by  the  county  surveyor,  and  appellee  the  Turner  Mash- 
burn 50-acre  tract  according  to  its  boundary  as  established  by  the  sur- 
veyor. 

We  fail  to  find  from  the  record  that  appellee  proved  possession  on 
the  part  of  himself  or  vendors  of  the  land  in  controversy  for  as  much 
as  15  years  before  the  institution  of  appellants'  action.  He  did,  it 
is  true,  prove  by  two  or  three  witnesses  that  the  exchange  of  lands 
between  A.  J.  Gordon  and  Boren  was  made  and  a  line  dividing  the 
lands  exchanged,  marked,  and  established  25  or  more  years  ago ;  but 
these  witnesses  were  evidently  mistaken  as  to  the  date  of  the  exchange 
and  making  of  the  line,  for  it  was  alleged  in  the  petition,  and  not  de- 
nied by  the  answer,  that  A.  J.  Gordon  did  not  become  the  owner  of 
the  House  100-acre  tract  of  land  until  December  17,  1894,  and,  as 
the  deed  conveying  him  the  land  bears  that  date,  it,  with  the  undenied 
averment  of  the  petition,  conclusively  established  the  fact.  This  be- 
ing true,  as  is  the  further  fact  that  appellants'  action  was  instituted: 


554  TITLE — IN    GENERAL 

by  the  filing  of  the  petition  and  issual  of  a  summons  November  6, 
1907,  it  necessarily  follows  that  A.  J.  Gordon  did  not  own  the  House 
land  as  far  back  as  the  two  witnesses  referred  to  testified  he  ex- 
changed lands  with  Boren.  Indeed,  to  be  precise,  it  is  certain  that 
Gordon  and  his  widow  and  children,  follow^ing  his  death,  had  owned 
the  House  land  only  12  years,  10  months,  and  19  days,  when  this 
action  was  instituted.  It  is  therefore  patent  that  appellee  and  his 
vendors  could  not  have  had  actual,  adverse,  or  even  constructive  pos- 
session of  the  20  acres  of  land  in  controversy  by  virtue  of  an  ex- 
change of  lands  between  Boren  and  Gordon  for  as  much  as  15  years 
before  the  institution  of  appellants'  action  to  recover  it. 

An  oral  agreement  fixing  a  dividing  line  between  the  adjoining 
lands  of  antagonistic  parties  has  by  this  court  been  held  not  within 
the  statute  of  frauds  and  perjuries;  it  being  the  policy  of  the  courts 
to  approve  and  uphold  such  agreements  as  tending  to  discourage  con- 
troversies between  neighbors  and  prevent  litigation.  Jamison  v.  Petit, 
6  Bush,  670;  Grigsby  v.  Combs,  21  S.  W.  37,  14  Ky.  Law  Rep.  652; 
Campbell  v.  Campbell,  64  S.  W.  458,  23  Ky.  Law  Rep.  870;  Frazier. 
etc.,  v.  Mineral  Development  Co.,  86  S.  W.  983,  27  Ky.  Law  Rep. 
815.  But  an  oral  exchange  of  lands  is  within  the  statute,  and  can  no 
more  be  enforced  than  can  an  oral  or  parol  sale  of  land.  It  is  true 
that  cases  may  be  found  in  which  the  courts  have  refused  to  disturb 
such  exchange  of  lands ;  but  it  was  only  where  possession  was  taken 
by  the  parties  of  the  lands  received  respectively  by  the  exchange  and 
actually  and  adversely  held  for  as  much  as  15  years.  Appellee  has 
shown  no  such  possession.  So,  if  the  written  agreement  he  made 
with  appellants  w^ere  out  of  the  way,  he  would  nevertheless  be  unable 
to  hold  the  land  in  controversy  by  reason  of  the  exchange  between 
Gordon  and  Boren. 

It  is  his  contention  that  the  writing  was  intended  to  set  forth  an 
agreement  between  himself  and  appellants  to  cause  to  be  surveyed  and 
ascertained  the  line  dividing  the  lands  exchanged  by  Gordon  and  Bor- 
en, and  that  he  believed  it  expressed  such  agreement  w^hen  he  signed 
and  acknowledged  it,  but  that  appellants'  agent,  Ford,  fraudulently 
caused  the  writing  to  be  prepared  in  its  present  form  and  language, 
and  induced  him  to  sign  it  without  informing  him  of  its  contents  or 
meaning.  This  contention  is  not  sustained  by  appellee's  own  testi- 
mony. He  did  say  it  was  not  understood  by  him,  but  admitted  that 
he  had  it  in  his  hands,  and  was  thereby  given  an  opportunity  to  read 
it.  He  also  failed  to  deny  that  it  was  read  to  him  by  Ford.  The 
three  attesting  witnesses  to  the  writing  were  Ford,  Williams,  aiul 
Simmons;  the  latter  being  a  brother  of  appellee.  Ford  testified  that 
the  paper  was  written  as  directed  by  the  parties ;  and  he  and  Wil- 
liams also  testified  that  Ford  placed  the  writing  in  appellee's  hands 
before  it  was  signed  by  him,  and  that  the  latter  held  it  for  some  time, 
appeared  to  be  reading  it,  and  had  ample  time  to  do  so ;    that  Ford 


TITLE   BY   ADVERSE   POSSESSION  555 

received  the  paper  after  appellee  had  thus  examined  it,  and  then  read 
and  explained  it  to  appellee,  who  thereupon  expressed  his  satisfac- 
tion with  the  paper  and  signed  and  acknowledged  it,  following  which 
it  was  duly  recorded. 

Simmons,  the  third  attesting  witness,  substantially  corroborates  both 
Ford  and  Williams  as  to  what  occurred  when  appellee  executed  the 
writing,  and  two  other  witnesses  to  whom  appellee  talked  after  sign- 
ing the  writing  testified  as  to  statements  from  him  manifesting  his 
knowledge  of  its  contents  and  satisfaction  with  its  provisions.  Ac- 
cording to  the  survey  made  in  pursuance  of  the  written  agreement, 
the  lines  of  the  House  100-acre  tract  are  as  claimed  by  appellants, 
and  they  include  and  shoV  appellants  to  be  the  owners  of  the  land  in 
controversy;  no  evidence  being  offered  by  appellee  to  prove  that  it 
is  not  a  part  of  the  House  tract. 

Our  reading  of  the  record  convinces  us  that  the  verdict  of  the  jury 
was  flagrantly  against  the  evidence;  indeed,  unauthorized  by  it;  and, 
in  view  of  the  evidence  of  appellants'  right  to  the  land  in  controversy 
and  the  absence  of  evidence  to  support  appellee's  defense,  the  trial 
court  should  have  peremptorily  (instructed  the  jury  to  find  for  appel- 
lants as  to  the  ownership  of  the  land,  no  damage  being  shown  on  ac- 
count of  its  detention  or  for  injury  to  it. 

This  conclusion  makes  it  unnecessary  for  us  to  consider  the  objec- 
tions urged  by  appellants  to  the  instructions  that  were  given  by  the 
court,  except  to  say  that  the  instructions  should  not  have  been  given. 
Only  a  peremptory  instruction  as  indicated  would  have  been  proper. 

Wherefore  the  judgment  is  reversed  and  cause  remanded  for  a  new 
trial  consistent  with  the  opinion. 


VANDIVEER  v.  STICKNEY. 

(Supreme  Court  of  Alabama,  1S83.     75  Ala.  225.) 

Appeal  from  Montgomery  Circuit  Court.  Tried  before  Hon.  James 
E.  Cobb. 

This  was  a  statutory  real  action  in  the  nature  of  ejectment,  brought 
by  William  P.  Vandiveer  against  Henry  G.  Stickney  and  Mary  E. 
Stickney;  was  commenced  on  17th  May,  1880;  and,  as  to  that  por- 
tion of  the  land  actually  in  controversy, — to  which  a  disclaimer  filed 
by  the  defendants  did  not  apply, — the  cause  was  tried  on  issues  joined 
on  the  pleas  of  not  guilty  and  the  statute  of  limitations  of  ten  years, 
the  trial  resulting  in  a  verdict  and  judgment  for  the  defendants. 

The  evidence  introduced  on  behalf  of  the  plaintiff  tended  to  show 
that  "the  property  sued  for  was  the  property  of  R.  B.  Owens  at  his 
death ;  that  the  said  Owens  died  intestate,  in  the  year  1862,  leaving  as 
his  only  heirs  at  law  his  children,  William,  Edwin,  and  Emma  Owens, 
and  Mrs.  Stickney,  the  defendant;    that  said  Emma  died  in  March, 


OOG  TITLE — IN    GENERAL 

1869,  unmarried,  and  without  children";  that  on  16th  June,  1870,  said 
Edwin  and  William  Owens  executed  to  the  plaintiff  a  mortgage  on 
an  undivided  two-thirds  interest  in  the  land  described  in  the  complaint, 
to  secure  money  then  loaned  to  them  by  the  plaintiff;  and  that  said 
debt  had  not  been  fully  paid. 

The  evidence  introduced  on  behalf  of  Mrs.  Stickney  tended  to  show 
that  her  sister  Emma,  at  the  time  of  her  death,  was  about  sixteen 
years  of  age;  that  prior  to  her  death,  she  expressed  a  desire  that 
Mrs.  Stickney  should  have  her  interest  in  her  father's  estate,  on  ac- 
count of  her  care  for  her,  and  on  account  of  the  money  she  had  spent 
for  her ;  that  within  a  few  days  after  the  death  of  said  Emma,  Edwin 
and  William  Owens  and  Mrs.  Stickney  "met  and  discussed  the  mat- 
ter between  them  and  it  was  agreed  between  them  that  Mrs.  Stickney 
should  have  said  Emma's  interest  in  said  property" ;  that  this  agree- 
ment was  verbal ;  that  from  the  time  of  said  agreement,  Mrs.  Stick- 
ney entered  into  the  possession  of  said  property  "by  herself,  or  her 
husband,  as  trustee,  or  tenants,  claiming  the  entire  property  as  her  own 
in  good  faith,  continuously,  openly,  notoriously,  and  adversely" ;  that 
she  has  continued  "in  such  possession  of  the  same  by  herself,  husband 
or  tenants,  and  was  in  such  adverse  possession  at  the  time  of  the 
execution  of  said  mortgage  to  the  plaintiff,  she,  at  that  time,  and 
ever  afterwards,  claiming  the  said  property  as  her  own,  in  good  faith, 
openly,  notoriously  and  adversely  to  her  brothers  and  all  the  world" ; 
that  on  21st  February,  1870,  the  said  Edwin  executed  a  deed,  convey- 
ing to  Mrs.  Stickney  his  undivided  interest  in  said  property,  which 
deed  was  duly  recorded;  that  the  said  William  "had  conveyed  to 
Mrs.  Stickney  his  undivided  one-fourth  interest  in  his  father's  estate, 
of  which  he  was  possessed,  before  his  sister  Emma's  death,  and  that 
the  deed  conveying  said  interest  was  duly  executed,  prior  to  the  death 
of  his  sister  Emma,  and  upon  a  valuable  consideration;  that  the  only 
right  to  said  W^illiam's  one-twelfth  interest  in  said  real  estate,  acquired 
through  his  said  sister  Emma,  claimed  by  Mrs.  Stickney  was  under 
and  through  said  verbal  agreement,  and  the  adverse  possession  there- 
of as  aforesaid";  and  that  after  said  verbal  agreement,  neither  the 
said  William  nor  the  said  Edwin  ever  asserted  any  right,  title,  claim, 
or  interest  in  or  to  the  share  of  the  said  Emma  in  said  property. 

"Plaintiff  then  introduced  evidence  tending  to  show  that  Edwin  and 
William  Owens  were  in  possession  of  said  stables  and  stable  lot  [a 
part  of  the  property  in  controversy]  in  the  spring  of  1870,  and  at  the 
time  of  the  execution  of  said  mortgage ;  and  there  was  also  evidence 
introduced  by  defendants,  tending  to  show  that  the  said  William  and 
Edwin  Owens,  while  in  possession  as  aforesaid,  at  the  time  of  the 
execution  of  said  mortgage,  were  there  as  the  tenants,  and  employes 
of  the  defendants  Stickney  and  wife,  and  in  no  other  capacity.  The 
said  plaintiff  also  testified  that  he  had  no  knowledge  of  the  claim  or 
title  of  Mrs.  Stickney  to  the  interest  of  her  said  brother  William  in 
said  Emma's  one-fourth  of  said  property  described  in  said  mortgage." 


TITLE    BY    ADVERSE   POSSESSION  557 

The  foregoing  was  the  substance  of  the  evidence  introduced  on  the 
trial  bearing  on  the  question  decided  by  the  court.  The  plaintiff  re- 
served numerous  exceptions  to  charges  given  and  refused,  which 
the  opinion  does  not  render  necessary  to  set  out. 

Those  charges  are  here  assigned  as  error. 

SomerviIvLe:,  J.  We  discover  no  error  in  the  rulings  of  the  circuit 
court,  as  shown  in  the  present  record. 

In  Collins  v.  Johnson,  57  Ala.  304,  it  was  decided  that  an  unin- 
terrupted, continuous  possession  of  lands  by  a  donee,  under  a  mere 
parol  gift,  accompanied  with  a  claim  of  right,  is  an  adverse  holding 
as  against  the  donor,  and  will  be  protected  by  the  statute  of  limita- 
tions, thus  maturing  into  a  good  title  by  the  lapse  of  ten  years.  The 
fact  is  immaterial  that  such  a  parol  gift  of  lands  conveys  no  title,  and 
only  operates  as  a  mere  tenancy  at  will,  capable  of  revocation  or  dis- 
affirmance by  the  donor  at  any  time  before  the  bar  of  the  statute  is 
complete.  It  is  evidence  of  the  beginning  of  an  adverse  possession 
by  the  donee,  which  can  be  repelled  only  by  showing  a  subsequent  rec- 
ognition of  the  superiority  of  the  title  of  the  donor.  The  essence  of 
adverse  possession  is  the  quo  animo  or  intention  with  which  the  pos- 
session is  taken  and  held  by  a  defendant.  It  is,  in  the  settled  language 
of  the  books,  the  intention  which  "guides  the  entry,  and  fixes  its  char- 
acter." Angell  on  Lim.  §  386;  Ewing  v.  Burnet,  11  Pet.  41,  9  L. 
Ed.  624.  Even  where  the  technical  relation  of  landlord  and  tenant 
exists,  and  despite  the  settled  rule  that  a  tenant  will  not  be  permitted 
to  dispute  the  title  of  his  landlord,  there  is  no  principle  of  law  or  of 
public  policy  which  forbids  a  tenant  from  holding  adversely  to  the 
landlord,  so  as  to  acquire  title  of  the  demised  premises  under  the 
operation  of  the  statute  of  limitations.  But  in  all  such  cases,  the  pre- 
sumption in  the  first  instance  is,  that  the  tenant's  possession  is  per- 
missive and  in  subordination  to  the  title  of  the  landlord,  and  there 
must  be  clear  and  positive  proof  of  a  disclaimer  or  renunciation  of 
the  superior  title,  brought  home  to  the  knowledge  of  the  landlord  with 
unquestionable  certainty.  Angell  on  Lim.  §  444;  2  Brick.  Dig.  p.  200, 
§§  101,  102. 

The  evidence  tended  to  show  that  the  defendants  held  adverse  pos- 
session of  the  lands  in  suit  for  more  than  ten  years  prior  to  the  com- 
mencement of  the  action.  The  undivided  interest  of  Emma  Owen, 
which  on  her  death  descended  in  part  to  her  two  brothers,  William 
and  Edwin,  was  released  by  parol  to  their  other  sister,  Mrs.  Stickney, 
who  is  one  of  the  defendants.  Her  adverse  possession  commenced 
at  this  time,  which  was  about  the  middle  of  March,  1869,  and  is 
shown  to  have  continued,  without  any  subsequent  recognition  of  the 
title  of  her  donors,  until  the  commencement  of  this  suit,  in  May,  1880. 
The  mortgage  executed  by  the  two  brothers  to  Vandiveer,  the  plain- 
tiff, in  June,  1870,  did  not  change  the  adverse  nature  of  Mrs.  Stick- 
ney's  possession,  nor  operate  in  any  manner  to  stop  the  running  of 
the  statute. 


558  TITLE — IN    GENERAL 

This  mortgage,  moreover,  is  shown  to  have  been  executed  by  the 
mortgagors  during  the  period  of  Mrs.  Stickney's  occupancy  and  ad- 
verse holding,  the  hostile  character  of  which  was  not  only  known  to 
them,  but,  in  its  inception,  was  expressly  authorized  by  their  parol  re- 
lease of  the  deceased  sister's  interest  in  the  mortgaged  lands.  The 
mortgage  was  therefore  void  as  tending  to  promote  champerty  and 
maintenance  by  traffic  in  litigated  titles.  The  rule  of  law  rendering 
conveyances  of  lands  void,  when  held  adversely,  is,  in  part,  one  of 
public  policy,  designed  to  "throw  obstacles  in  the  way  of  asserting 
doubtful  rights  to  the  prejudice  of  occupants."  Clay  v.  Wyatt,  6  J. 
J.  Marsh  (Ky.)  583;  Bernstein  v.  Humes,  60  Ala.  582,  31  Am.  Rep. 
52.  "It  seems,"  says  Chancellor  Kent,  "to  be  the  general  sense  and 
usage  of  mankind,  that  the  transfer  of  real  property  should  not  be 
valid,  unless  the  grantor  hath  the  capacity  as  well  as  the  intention  to 
deliver  possession."    4  Kent,  448. 

To  avoid  a  conveyance  on  this  ground,  it  is  not  requisite  that  such 
adverse  possession  should  be  asserted  under  any  color  of  title,  but  only 
under  claim  of  right.  But  it  must  be  actual  as  distinguished  from  con- 
structive possession.  Bernstein  v.  Humes,  71  Ala.  260;  Eureka  Co.  v. 
Edwards,  Id.  248,  46  Am.  Rep.  314.  Nor  is  it  required  that  the  mort- 
gagee, or  other  purchaser  should  have  actual  notice  of  such  adverse 
holding,  in  order  to  vitiate  the  conveyance.  The  constructive  notice 
implied  from  possession  is  sufficient.     Bernstein  v.  Humes,  supra. 

Nor,  yet  again,  does  a  knowledge  by  one  in  actual  possession,  claim- 
ing title,  that  his  title  is  defective,  avail  to  destroy  its  adverse  charac- 
ter. The  test  is  the  actual  claim,  and  not  the  bona  fides  of  it,  in  all 
cases,  at  least,  where  the  possession  is  actual  and  not  merely  con- 
structive. Smith  V.  Roberts,  62  Ala.  83 ;  Alexander  v.  Wheeler,  69 
Ala.  332 ;  Gordon,  Rankin  &  Co.  v.  Tweedy,  74  Ala.  232,  49  Am.  Rep. 
813. 

These  principles  are  all  pertinent  to  the  present  case,  and  were  rec- 
ognized in  the  rulings  of  the  court. 

The  doctrine  settled  in  this  State  is,  that  the  possession  of  the  ten- 
ant is  the  possession  of  the  landlord,  and  notice  of  the  former  is 
notice  of  the  latter.  The  reason  is,  as  observed  in  a  former  decision, 
that  an  inquiry  of  the  occupant  will  be  likely  to  lead  to  a  knowledge 
of  the  fact  that  he  is  a  mere  tenant,  holding,  not  in  his  own  right,  but 
in  the  right  of  another  who  is  his  landlord.  Brunson  v.  BrookG,  68 
Ala.  248;  Pique  v.  Arendale,  71  Ala.  91;  Wade  on  Notice,  §§  284- 
286;   Burt  v.  Cassety,  12  Ala.  734. 

It  was  immaterial,  therefore,  that  the  mortgagors  were  in  the  tem- 
porary occupancy  of  a  portion  of  the  property  sued  for  at  the  time 
of  the  execution  of  the  mortgage,  in  the  year  1870,  provided  they 
entered  after  the  commencement  of  Mrs.  Stickney's  adverse  posses- 
sion, and  as  mere  tenants,  fully  recognizing  the  superiority  of  her 
title  as  owner  and  landlord.  Purchasers  from  tenants  are  as  fully 
precluded  as  the  tenants  themselves,  from  disputing  the  title  of  their 


TITLE    BY    ADVERSE    POSSESSION  559 

landlord.  Taylor's  Land.  &  Ten.  §  91 ;  Bishop  v.  Lalouette,  67  Ala. 
197.  The  principle  settled  in  McCarthy  v.  Nicrosi,  72  Ala.  332,  47 
Am.  Rep.  418,  does  not  conflict  with  this  view.  There  the  possession 
of  the  vendor  and  purchaser  was  joint,  both  being  in  actual  pos- 
session at  the  time  the  deed  was  executed.  It  was  held  that,  in  as 
much  as  there  was  no  visible  change  of  possession,  a  third  person 
purchasing  would  not  be  charged  with  constructive  notice  of  the  un- 
recorded deed  of  the  first  vendee.  If,  however,  the  vendor  had  openly 
and  visibly  yielded  exclusive  possession  to  the  vendee,  and  had  after- 
wards gone  in  as  a  mere  tenant,  the  rule  would  have  been  otherwise. 
Such  is  this  case,  in  fact,  as  well  as  in  principle  and  legal  effect. 
Judgment  affirmed. 


2.  Color  of  Title 


ANDERSON  v.  BURNHAM. 
(Supreme  Court  of  Kansas,  1893.    52  Kan.  454,  34  Pae.  1056.) 

Error  from  district  court,  Allen  county;   L.  Stillwell,  Judge. 

Action  by  Nelson  Burnham  against  Thomas  Anderson  to  recover 
land.    Plaintiff  had  judgment,  and  defendant  brings  error.     Reversed. 

Johnston,  J.  This  was  an  action  brought  by  Nelson  Burnham 
against  Thomas  Anderson  to  recover  160  acres  of  land  in  Allen  coun- 
ty. To  sustain  his  right  of  recovery,  Burnham  showed  a  patent  from 
the  United  States  to  the  Missouri,  Kansas  &  Texas  Railroad  Com- 
pany, dated  November  3,  1873,  and  also  a  chain  of  title  from  the 
railroad  company,  through  several  conveyances,  to  himself.  The  pat- 
ent and  the  instruments  of  conveyance  were  duly  recorded  in  the 
office  of  the  register  of  deeds.  Anderson  rests  his  claim  of  title  upon 
adverse  possession  of  himself  and  grantor  for  more  than  15  years 
prior  to  the  commencement  of  the  action. 

Upon  the  question  of  adverse  possession,  the  only  evidence  produced 
was  that  offered  by  Anderson.  It  showed  that  Anderson  purchased 
the  land  from  C.  O.  Starkey  in  1881,  who  then  conveyed  such  inter- 
est or  title  as  he  had  to  Anderson  by  quitclaim  deed.  In  1866,  while 
it  was  yet  government  land,  and  subject  to  entry  by  settlers,  Starkey 
entered  upon  it  with  a  purpose  of  procuring  a  title  thereto  under  the 
laws  of  the  United  States  relating  to  public  lands.  He  then  surveyed 
out  the  land,  and  placed  posts  or  stakes  at  each  corner  of  the  quarter 
section,  indicating  the  boundaries  and  extent  of  his  claim.  He  broke 
or  plowed  a  portion  of  it,  which  was  cultivated  and  put  in  crops  ev- 
ery year  thereafter,  until  the  land  was  sold  to  Anderson.  Hedgerows 
were  broken  out,  and  in  1868  he  built  a  hay  barn  and  corncrib,  which 
was  a  permanent  structure  and  a  visible  evidence  of  occupancy.  He 
used  that  portion  of  the  land  not  in  cultivation  as  a  meadow,  cutting 


SCO  TITLE — IN    GENERAL 

and  putting  up  hay  thereon  each  year  of  his  occupancy.  He  was  an 
unmarried  man  until  1879,  and  did  not  build  a  residence  upon  the 
property  until  that  year,  but  from  the  time  that  he  entered  upon  it, 
until  the  residence  was  built,  he  lived  with  his  father  upon  an  adjoin- 
ing farm.  At  no  time  was  his  possession  interrupted,  and  in  the 
vicinity  where  it  was  locatedit  was  known  and  recognized  as  "Starkey's 
Claim."  He  plowed  entirely  around  the  quarter  section  20  12-inch 
furrows,  built  a  house  and  stable,  planted  300  fruit  trees,  lariated  and 
herded  his  stock  upon  it,  and  remained  in  undisputed  possession  un- 
til it  was  sold  and  transferred  to  Anderson,  in  1881.  Anderson  im- 
mediately took  possession,  fenced  and  cultivated  all  but  75  acres, 
which  was  put  in  a  pasture,  planted  an  additional  orchard,  built  other 
buildings,  and  resided  upon  the  farm  continuously  until  the  commence- 
ment of  the  action,  which  was  August  6,  1889. 

There  was  no  pretense  of  possession  by  Burnham,  nor  by  any  of 
his  grantors.  On  the  other  hand,  it  is  shown  that  an  agent  of  the 
railroad  company,  who  was  engaged  in  locating  and  appraising  the 
lands  granted  to  the  company,  had  notice  of  Starkey's  possession, 
as  well  as  of  the  claim  which  he  made  to  the  land.  It  is  clear  from 
what  has  been  stated  that  there  has  been  an  actual  occupancy  by  An- 
derson and  his  grantor,  clear,  positive,  notorious,  and  continuous,  for 
more  than  15  years  before  the  commencement  of  the  action.  Did 
such  occupancy  constitute  adverse  possession,  which  ripened  into  a 
good  title,  as  against  the  legal  owner?  Starkey  could  obtain  no  right 
against  the  United  States  by  reason  of  his  possession,  but  it  appears 
that  the  title  passed  from  the  government  in  1873,  and  there  was  a 
lapse  of  more  than  16  years  thereafter  before  the  possession  was  chal- 
lenged. During  all  that  time  Anderson  and  his  grantor  were  claim- 
ing and  holding  in  hostility  to  the  rights  of  the  railroad  company  and 
those  holding  under  it.  It  is  true  that  Starkey  had  no  paper  title, 
but  this  is  not  essential  to  adverse  possession,  nor  to  the  acquirement 
of  title  by  virtue  of  the  statute  of  limitations.  Our  statute  does  not, 
as  do  those  of  some  of  the  states,  make  color  of  title  an  essential  ele- 
ment in  a  title  by  limitation.  Civil  Code,  §  16.  In  Wood  v.  Railway 
Co.,  11  Kan.  324,  it  is  said  that  "a  mere  trespasser,  without  color  of 
right  or  title,  who  has  been  in  the  actual  possession  of  real  estate 
for  fifteen  years,  claiming  title  thereto,  becomes  the  owner  of  the 
property,  by  virtue  of  the  statute  of  limitations,  if  the  property  has 
been  owned  during  all  that  time  by  some  individual  or  individuals, 
and  not  by  the  United  States.  Mere  possession,  therefore,  of  lands 
to  which  the  government  has  parted  with  its  title,  for  any  period,  how- 
ever short,  with  a  claim  of  ownership,  may  be  said  to  be  an  incipient 
or  inchoate  title,  for  such  a  possession  will  in  time  ripen  into  a  com- 
plete, perfect,  and  absolute  title." 

This  doctrine  was  reasserted  in  Rosa  v.  Railway  Co.,  18  Kan.  127. 
It  is  the  holding  of  the  notorious  and  exclusive  possession  of  the  land 


TITLE   BY   ADVEKSE   POSSESSION  561 

in  hostility  to  the  rights  of  the  owner  which  gives  the  title,  and  not 
any  mere  instrument  or  paper  under  which  claim  is  made.  Posses- 
sion by  any  adverse  occupant,  which  is  actual,  continuous,  and  ex- 
clusive, will  give  title  when  the  bar  of  the  statute  becomes  complete, 
although  such  possession  is  entirely  destitute  of  color  of  title.  The 
difference  between  title  acquired  by  adverse  occupancy  under  color 
of  title  and  without  such  color  is  that  under  the  former  the  color  of 
title  gives  character  to  the  possession,  and  gives  rise  to  the  presump- 
tion that  the  claimant  intends  the  entry  shall  be  coextensive  with  the 
description  in  the  deed,  while  under  the  latter  the  title  will  only  be 
coextensive  with  the  actual,  visible,  and  continued  occupancy.  Gilde- 
haus  v.  Whiting,  39  Kan.  711,  18  Pac.  916;  Roots  v.  Beck,  109  Ind. 
472,  9  N.  E.  698. 

If  the  entry  upon  the  land  by  Starkey  was  actual,  and  the  holding 
of  the  possession  was  notorious  and  exclusive  from  1873,  when  the 
railroad  company  acquired  the  legal  title,  it  would  amount  to  a  dis- 
seisin, which  would  give  title  at  the  end  of  the  statutory  period.  It 
is  immaterial  what  may  have  been  his  right  or  claim  of  right  to  the 
land,  and  what  may  have  been  his  motive,  if  he  entered  upon  the 
land  and  held  a  hostile  possession  as  against  the  owner  of  the  legal 
title.  Fitzgerald  v.  Brewster,  31  Neb.  51,  47  N.  W.  475.  It  is  true 
that  Starkey  did  not  reside  on  the  land  until  1879,  but  it  is  not  neces- 
sary that  a  person  should  reside  upon  real  estate  in  order  that  he 
may  be  in  the  actual  possession  of  the  same.  If  it  is  subjected  to 
the  dominion  of  the  claimant,  manifested  in  some  appropriate  man- 
ner, adapted  to  its  character,  condition,  and  locality,  by  which  the 
party  proclaims  to  the  public  that  he  asserts  an  exclusive  control  and 
ownership  of  the  land,  a  residence  upon  it  as  not  essential.  Gilmore 
v  Norton,  10  Kan.  491 ;  Barstow  v.  Newman,  34  Cal.  91 ;  Webber 
v.  Clarke,  74  Cal.  11,  15  Pac.  431. 

In  the  early  years  of  the  occupancy  of  the  land  by  Starkey,  the 
country  was  new,  sparsely  settled,  and  not  much  of  it  was  in  actual 
cultivation,  but  this  land,  like  that  surrounding  it,  was  largely  used 
for  hay  and  grazing  purposes.  It  was  not  inclosed  with  a  fence,  but 
that  is  not  essential  to  actual  and  adverse  possession.  The  use  which 
he  made  of  it  was  that  to  which  it  was  adapted,  and  the  improve- 
ments which  he  placed  thereon  proclaimed  to  all  that  he  was  exer- 
cising rights  of  ownership  over  the  land,  inconsistent  with  the  right 
of  the  real  owner.  The  improvements  marked  the  boundaries  of 
the  land,  and  left  no  question  that  he  was  claiming  the  entire  quarter 
s_ection.  His  occupancy  and  use  were  continuous  from  year  td  year, 
so  that  he  could  not  be  regarded  as  an  occasional  trespasser,  nor  can 
his  possession  be  regarded  as  hidden  or  intermittent.  For  more  .than 
1.5  years  this  possession  was  maintained  without  interference  by  the 
holder  of  the  legal  title,  or  any  attempt  by  him  to  dispute  the  right- 
Bukd.Cas.Real  Prop. — 36 


562  TITLE — IN   GENERAL 

fulness  of  the  possession  of  Starkey  and  Anderson.  During  this  long 
period  of  occupancy  and  possession  valuable  improvements  were 
placed  upon  the  land,  but  not  until  August,  1889,  did  the  owner  chal- 
lenge the  possession  or  the  rightfulness  of  the  claim  and  possession  of 
the  occupant.  It  was  then  too  late;  that  possession  had  ripened  into 
a  title. 

As  the  evidence  is  undisputed,  there  is  no  necessity  for  a  retrial  of 
the  facts,  and  therefore  the  judgment  of  the  court  will  be  reversed, 
and  the  cause  remanded,  with  the  direction  to  enter  judgment  in  favor 
of  the  plaintiff  in  error.     All  the  justices  concurring. 


3.  Tacking  Possessions 


ERCK  v.  CHURCH. 
(Supreme  Court  of  Tennessee,  1889.    87  Tenn.  575,  11  S.  W.  794,  4  L.  R.  A,  641.) 

Appeal  from  chancery  court,  Shelby  county;  B.  M.  Estes,  Chan- 
cellor. 

Dickinson,  Special  Judge.  Complainant  filed  this  bill  September 
25,  1886,  to  recover  possession  of  a  parcel  of  land  in  Memphis,  front- 
ing 3  feet  and  10  inches  on  Lauderdale  street,  and  5  feet  71/2  inches 
on  Humphries  street,  being  309  feet  in  length.  It  is  admitted  that 
complainant  has  a  good  legal  title,  and  that  he  has  a  right  to  recover, 
unelss  it  has  been  defeated  by  the  operation  of  the  statute  of  limita- 
tions. Mackall  sold  and  deeded  to  Warner  a  lot  contiguous  to  the 
parcel  in  dispute,  fronting  50  feet  on  Lauderdale  street  and  the  same 
width  on  Humphries  street,  bounded  by  parallel  lines.  In  taking  pos- 
session Warner  did  not  measure  his  50  feet.  Mackall,  at  the  time 
Warner  purchased,  pointed  to  a  group  of  trees,  and  designated  one 
as  being  on  the  south  boundary  line  of  the  lot  sold.  Warner  fenced  in 
his  purchase  and  placed  his  south  fence  along  the  line  indicated,  be- 
lieving that  he  was  inclosing  the  parcel  purchased  of  Mackall,  and  no 
more.  He  in  fact  inclosed  with  his  50-foot  lot  the  parcel  in  dispute, 
and  from  that  time  continued  to  hold  as  his  own  the  entire  tract  in- 
cluded by  his  fences.  Warner  sold  to  defendant,  Church,  by  deed,  fol- 
lowing the  description  in  the  deed  from  Mackall  to  him,  which  em- 
braced the  50  feet,  but  not  the  parcel  in  dispute ;  and  Church  took 
possession  of  the  whole  tract,  as  inclosed  by  Warner,  and  held  it  as 
his  own.  It  is  admitted  that  Church  has  not  held  seven  years,  but 
that  Warner  and  Church  together  have  held  more  than  seven  years. 

Complainant  contends  that  the  statute  of  limitations  has  not  oper- 
ated for  these  reasons :  First.  That  Warner  did  not  intend  to  inclose 
any  ground  but  the  50  feet  he  purchased ;  that  he  took  possession  of, 
and  held  tlie  disputed  parcel  by  mistake ;  and  that,  therefore,  the  stat- 
ute was  not  set  in  motion,  because  an  essential  requisite,  namely,  an 


TITLE    BY    ADVERSE   POSSESSION  503 

intention  to  hold  adversely,  did  not  exist.  Second.  That  the  periods 
of  possession  by  Warner  and  Church  cannot  be  connected,  because 
they  are  both  wrong-doers,  and  there  is  no  privity  between  them. 

On  the  first  question  we  are  without  precedent  in  this  state.  The 
case  of  Gates  v.  Butler,  3  Humph.  447,  is  erroneously  cited  by  com- 
plainant as  sustaining  his  contention.  In  that  case  plaintiff  asserted 
title  by  constructive  possession  of  a  large  tract,  a  portion  of  which 
he  claimed  to  have  held  adversely  for  seven  years  by  actual  posses- 
sion. This  possession,  if  it  existed,  came  by  inclosing  a  small  portion 
of  land  in  the  disputed  grant  by  mistake,  in  placing  the  fence  on  the 
supposed  boundary  line  of  a  contiguous  tract  held  by  a  different  title. 
The  proof  made  it  most  probable  that  the  fence  was  on  the  true  bound- 
ary line.  The  court  said :  "Under  these  circumstances,  the  court 
charged  that  the  accidental  and  unintended  inclosure  of  a  small  part 
of  the  land  for  seven  years  would  not  vest  a  valid  title,  etc.  In  this 
we  think  there  was  no  error,  and  we  affirm  the  judgment."  There 
is  a  wide  difference  between  a  plaintiff  actively  setting  up  a  title  claim- 
ed to  be  perfected  by  accidental  possession  of  a  portion  of  land  em- 
braced in  an  instrument  giving  a  color  of  title,  and  one  defending  by 
a  possessory  right  to  the  extent  of  his  actual  inclosures.  A  court 
would  be  slow  to  assist  one  who  though  having  a  color  of  title  to  a 
tract  of  land  by  mistake,  and  without  intention  to  assert  his  title,  had 
inclosed  an  insignificant  portion  of  the  tract,  and  afterwards,  on  dis- 
covering his  accidental  holding,  sought  to  extend  by  construction  this 
possession  so  as  to  invest  himself  with  an  indefeasible  title  to  the 
whole,  and  thus  convert  the  possession  which  might  be  a  shield  for  de- 
fense commensurate  with  his  actual  occupancy  into  a  weapon  of  attack 
as  far-reaching  as  the  limits  embraced  in  his  deed.  The  case  of  Gates 
v.  Butler  decided  that  such  possession  could  not  avail  for  such  a  pur- 
pose and  nothing  more. 

The  courts  of  the  different  states  are  in  conflict  upon  the  question 
we  are  considering.  In  Wood  on  Limitation  of  Actions  the  oppos- 
ing rules  are  stated,  and  the  cases  sustaining  them  respectively  are 
cited.  Section  263.  In  French  v.  Pearce,  8  Conn.  439,  21  Am.  Dec. 
680,  the  defendant  occupied  lands  not  embraced  in  his  dee^,  under 
the  mistaken  idea  that  they  were  included  in  his  deed.  There  was  no 
evidence  that  he  intended  to  occupy  such  lands  adversely  except  such 
as  might  be  afforded  by  the  fact  that  he  occupied  and  used  them  as  his 
own.  The  court  held  that  he  thereby  acquired  title  to  the  land  by 
possession.  Under  the  second  section  of  the  act  of  1819  "no  person, 
or  any  one  claiming  under  him,  shall  have  any  action,  either  at  law  or 
in  equity,  for  any  lands,  tenements,  or  hereditaments,  but  within  seven 
years  after  the  right  of  action  has  accrued."  If  one  enter  upon  the 
land  of  another,  whether  with  intent  to  disseise  or  mistaking  it  for 
his  own,  a  right  of  action  accrues  at  once  to  the  owner.  If  the  one  so 
entering  holds  and  claims  the  land  as  his  own  for  seven  years  con- 
tinuously, then,  certainly,  the  conditions  of  the  statute  will  have  been 


564  TITLE IN    GENERAL 

fulfilled.  The  right  of  action  of  the  true  owner  accrues  at  once  upon 
the  entry,  and  is  not  dependent  upon  the  state  of  mind  or  the  knowl- 
edge as  to  boundary  lines  possessed  by  the  owner  entering.  If  the  fact 
of  knowledge  or  intent  were  an  essential  element  of  disseisin,  then 
the  real  owner  would  have  no  right  of  action  against  one  who  had 
entered  by  mistake,  until  after  he  was  convinced  of  his  mistake,  and 
then,  with  knowledge  of  his  error,  continued  to  hold,  thus  altering  the 
character  of  his  possession,  and  technically  ousting  the  true  owner  by 
a.  change  of  mental  condition. 

Such  a  contention,  under  our  statute,  is  not  tenable.  The  right  of 
action  accrues  when  one  takes  possession  as  his  own,  whether  by  mis- 
take or  otherwise,  and  the  right  of  recovery  is  barred  in  seven  years 
from  such  entry,  if  the  possession  be  unbroken.  The  possession  and 
adverse  holding  are  notice  to  the  world  and  to  the  true  owner,  to  the 
extent  of  the  occupancy,  and  the  visible  physical  fact  should  not  be 
overcome  by  mere  refinements  based  upon  mental  status.  To  hold 
otherwise  would  be  to  place  the  intentional  wrong-doer  in  a  better 
position  than  one  who  had  innocently  entered  upon  the  lands  of  an- 
other, and  expended  his  means  in  good  faith.  The  intentional  land- 
grabber,  who,  with  premeditated  wrong,  took  possession  of  lands, 
would  be  protected,  while  one  who,  by  error  of  surveyor  or  as  to  nat- 
ural monuments,  innocently  and  by  mistake  entered  on  the  wrong 
land  and  improved  it  in  good  faith,  would  not  be  protected  if  he  held 
twice  seven  years.  A  mistake  of  a  surveyor  in  locating  a  city  lot 
for  valuable  improvements  might  cause  one  to  place  a  wall  a  few 
inches  beyond  the  actual  line  called  for  by  his  deed,  and  no  length 
of  possession  short  of  the  time  required  for  a  presumption  of  a  grant 
would  quiet  the  possessory  right.  It  is  manifest  from  the  proof  in 
this  cause  that  Warner  and  Church  intended  to  hold  all  the  ground 
embraced  by  their  fences  as  their  own.  Such  possession  was  adverse 
under  our  statutes,  whether  it  was  by  mistake  as  to  the  real  bound- 
aries or  not ;  and,  if  continued  for  seven  years,  it  would  bar  an  action 
for  recovery  of  the  land  so  held. 

The  next  question  for  consideration  is  whether,  upon  the  facts  in 
this  case,  the  bar  was  complete.  It  is  admitted  that  Church  has  not 
held  for  seven  years,  and  that  to  make  out  his  defense  he  must  tack  his 
possession  to  that  of  Warner.  The  deed  from  Warner  to  Church 
does  not  convey  the  land  in  controversy.  There  is  no  evidence  that 
Warner,  by  deed  or  otherwise,  undertook  to  transfer  to  Church  his 
possessory  right  to  this  ground.  There  is  no  connection  between  them 
in  respect  to  it,  except  the  fact  that  Church  took  possession  of  it  along 
with  the  50  feet  deeded  to  him  by  Warner.  Can  the  two  possessions 
be  connected,  so  as  to  make  out  the  seven  years?  The  declaration  that 
the  successive  possession  of  trespassers  cannot  be  united,  for  the  rea- 
son that  there  can  be  no  privity  between  wrong-doers,  has  appeared 
from  time  to  time  in  our  reports. 


TITLE    BY    ADVERSE    POSSESSION  565 

In  Moffitt  V.  McDonald, — a  case  of  holding  slaves, — the  period  of 
adverse  possession  being  fully  made  out  without  connecting  different 
possessions,  Judge  Totten  (11  Humph.  464)  says:  "It  is  a  well-settled 
principle,  alike  applicable  to  real  and  personal  property,  that  between 
successive  wrong-doers,  having  no  title,  there  can  be  no  privity,  and 
therefore  their  possessions  cannot  be  united  so  as  to  make  out  the 
time  required  to  form  the  bar  of  the  statute  of  limitations."  The  prop- 
osition stated  was  not  involved  in  the  case.  Wells  v.  Ragland,  1  Swan,, 
502,  and  Hobbs  v  Ballard,  5  Sneed,  396,  were  both  cases  of  adverse 
holding  of  slaves,  and,  curiously  enough,  in  each,  not  the  defendant, 
but  the  complainant,  sought  to  connect  the  several  possessions,  so  as 
to  avoid  the  effect  of  the  statute  of  limitations,  inasmuch  as  all  of  the 
complainants  were  minors  during  the  first  possession,  and  under  the 
rule  in  our  state  the  bar  would  not  have  become  complete  until  all  of 
them  had  reached  majority;  whereas,  when  the  second  possession 
began,  one  was  of  age,  thus  barring  all,  unless  suits  were  brought  with- 
in the  time  fixed  by  the  statute  for  the  one  who  was  free  from  dis- 
ability. Though  the  successive  possessions  were  connected  by  sale 
and  transfer,  the  complainants  sought  in  vain  to  tack  them,  and  make 
thern  one ;  the  court  holding  that  each  new  possession  was  a  conver- 
sion, and  that  there  could  be  no  privity  between  wrong-doers. 

In  Clark  v.  Chase,  5  Sneed,  637,  the  doctrine  before  stated  is  broad- 
ly asserted,  but  it  was  not  called  for  by  the  case.  Judge  Caruthers 
says :  "The  complainant's  counsel  contend  that  the  case  is  analogous 
to  successive  possession  of  naked  trespassers  or  wrong-doers,  which  it 
has  been  often  held  by  this  court  cannot  be  united  in  order  to  make 
out  the  time  required  by  the  statute  of  limitations  for  the  bar  under 
the  act  of  1819."  He,  however,  cites  no  cases  adjudicating  this  ques- 
tion. In  Baker  v.  Hale,  6  Baxt.  47,  the  court  expressly  held  that  the 
successive  possessors  were  not  trespassers;  the  first  having  gone  in 
by  parol  contract  to  purchase,  and  having  transferred  by  deed  his  right 
to  the  second.  Judge  Nicholson,  however,  in  his  opinion  says:  "It  is 
settled  by  repeated  adjudications  in  this  state  that  the  successive  pos- 
sessions of  trespassers  cannot  be  so  connected  as  to  make  up  the  bar  of 
seven  years  under  the  second  section  of  the  act  of  1819,  and  for  the 
reason  that  there  can  be  no  privity  between  wrong-doers," — citing  three 
of  the  cases  above  commented  on,  and  Vance  v.  Fisher,  10  Humph. 
213. 

In  Nelson  v.  Trigg,  4  Lea,  701,  although  the  facts  and  the  decision 
of  the  case  did  not  call  for  it,  the  principle  is  stated  as  follows :  "A 
naked  trespasser,  without  color  of  title,  cannot  transmit  his  right  to 
a  successor,  so  as  to  enable  the  latter  to  couple  the  two  possessions 
to  make  out  the  bar  of  seven  years."  This  doctrine,  so  often  reiterated 
as  an  established  and  familiar  principle  of  our  land  law,  is  not  direct- 
ly adjudicated  by  any  case  in  our  state  which  has  been  called  to  our 
attention.  In  Vance  v.  Fisher,  10  Humph.  212,  the  defendant  under- 
took to  connect  his  possession  with  that  of  a  prior  possessor,  which  the 


566  TITLE — IN   GENERAL 

«!ourt  denied  him,  on  the  ground  that  he  had  received  the  possession 
from  the  administrator  of  the  first  possessor,  and  that  the  administra- 
tor, having  no  control  over  his  decedent's  land,  had  no  right  to  trans- 
mit the  possession  so  as  to  connect  the  two,  and  that  for  this  reason 
the  defendant  "must  be  regarded  as  being  in  possession  of  the  land, 
not  in  privity  with  the  previous  possessor,  but  as  a  wrong-doer,  who 
cannot  couple  his  possession  with  that  of  a  prior  possessor."  It  would 
seem  inferentially  that  the  conclusion  would  have  been  different  had 
the  possession  been  passed  by  the  first  possessor  himself.  This,  how- 
ever, would  not  have  been  a  precedent  for  the  case  under  considera- 
tion, inasmuch  as  the  first  possessor  in  the  case  in  10  Humph.  213, 
had  entered  under  a  contract  by  which  one  Orr  had  sold  him  the  land 
with  covenant  to  convey,  which  constituted  a  color  of  title. 

A  leading  case  in  this  state,  and  one  frequently  cited  by  judges  and 
text-writers,  is  Marr  v  Gilliam,  1  Cold.  491.  The  point  actually  de- 
cided was  that  the  possession  of  one  who  had  entered  lawfully  upon 
land  by  deed  as  a  tenant  in  common,  but  who  subsequently  began  to 
hold  adversely  to  the  other  tenants  in  common,  might  be  connected 
with  that  of  his  heirs  so  as  to  make  out  the  period  of  the  statute,  be- 
cause there  is  a  privity  of  estate  between  ancestor  and  heir,  but  that  the 
wife  of  such  first  possessor  could  not  connect  her  possession  with  his, 
because  there  was  no  such  privity  between  husband  and  wife.  Judge 
Wright  (page  504)  thus  states  the  law:  "Separate  successive  disseisins 
do  not  aid  one  another  where  several  persons  successively  enter  on 
land  as  disseisors,  without  any  conveyance  from  one  to  another,  or 
any  privity  of  estate  between  them  other  than  that  derived  from  the 
mere  possession  of  the  estate.  Their  several  consecutive  possessions 
cannot  be  tacked,  so  as  to  make  a  continuity  of  disseisins  of  sufficient 
length  of  time  to  bar  the  true  owners  of  their  right  of  entry."  On 
pages  509,  510,  Judge  Wright  discusses  the  cases  of  Wallace  v.  Han- 
num,  1  Humph.  443,  34  Am.  Dec.  659;  Norris  v.  ElHs,  7  Humph.  463  ; 
and  Crutsinger  v.  Catron,  10  Humph.  24, — and  criticises  as  dicta  the 
statements  in  those  opinions  that  a  trespasser  by  mere  possession,  with- 
out color  of  title,  acquires  no  right  that  is  either  alienable  or  descend- 
ible. 

As  previously  stated,  Judge  Nicholson,  in  Baker  v  Hale,  6  Raxt.  48, 
says:  "It  is  settled  by  repeated  adjudications  in  this  state  that  the  suc- 
cessive possessions  of  trespassers  cannot  be  so  connected  as  to  make 
up  the  bar  of  seven  years  under  the  second  section  of  the  act  of  1819, 
and  for  the  reason  that  there  can  be  no  privity  between  wrong-doers." 
In  this  case  he  reviews  Marr  v.  Gilliam.  On  page  51  he  apparently 
approves  the  statement  of  the  law  as  made  by  Judge  Wright,  to  the 
effect  that  successive  possessions  of  trespassers  may  be  tacked  to- 
gether where  the  successive  possessors  hold  the  land  as  their  own, 
and  there  is  a  privity  of  estate  between  them.  On  the  next  page,  how- 
ever, he  says  that  the  possessory  right  of  a  naked  trespasser  is  not 
descendible  or  alienable.    This  is  clearly  in  conflict  with  the  position  of 


TITLE   BY   ADVERSE   POSSESSION  567 

Judge  Wright.  In  neither  case,  however,  was  the  law,  as  slated, 
called  for.  Thus  we  have  conflicting  declarations  of  the  law  from  emi- 
nent judges,  but  none  of  them  are  stamped  with  the  authority  of  an 
adjudged  case. 

In  Wait's  Actions  and  Defenses  the  following  is  stated  to  be  the 
law :  "Where  there  are  several  successive  adverse  occupants  of  real 
property,  the  last  one  may  tack  the  possession  of  his  predecessor  to 
his  so  as  to  make  a  continuous  adverse  possession  for  the  time  required 
by  the  statute,  provided  there  is  a  privity  of  possession  between  such 
occupants,  and  in  case  of  an  actual  adverse  possession  such  privity 
arises  from  a  parol  bargain  and  sale  of  the  possession  of  the  prem- 
ises, followed  by  delivery  thereof,  as  well  as  by  a  formal  conveyance 
from  one  occupant  to  the  other."  Volume  6,  p.  455,  and  the  cases 
there  cited.  In  Weber  v.  Anderson,  73  111.  439,  the  facts  presented 
a  case  involving  almost  every  essential  element  embodied  in  the  case 
under  consideration.  The  instruction  in  the  lower  court  to  the  jury 
was  that  the  rights  acquired  by  the  first  possessor  could  not  be  trans- 
mitted except  by  deed.  The  case  was  reversed,  the  superior  court  say- 
ing that  there  was  "parol  proof  showing  the  plankroad  company  trans- 
ferred their  possessions  over  to  him,"  (the  defendant.)  It  was  held 
that  parol  proof  was  sufficient  to  show  the  transfer  of  possession,  and 
that  it  could  be  tacked  to  the  subsequent  holding.  It  does  not  clearly 
appear  in  that  case  whether  or  not  there  was  an  actual  transfer  of  a 
possessory  right  by  parol.  The  language  of  the  court  would  admit  of 
this  construction.  If,  however,  the  possession  merely  passed,  as  in 
the  case  under  consideration,  sub  silentio,  without  any  knowledge  by 
either  party  that  there  was  such  a  possessory  right,  and  that  it  was 
being  transferred  in  the  case,  it  is  an  extreme  one. 

The  opposite  conclusion  was  reached  under  a  similar  state  of  facts 
by  the  supreme  court  of  Wisconsin  in  Graeven  v.  Dieves,  68  Wis.  317, 
31  N.  W.  914.  In  Fanning  v.  Willcox,  3  Day  (Conn.)  258,  the  rule, 
(as  quoted  by  Wood,  Lim.  582,  note,)  is  thus  stated:  "Doubtless  the 
possessions  must  be  connected  and  continuous,  so  that  the  possession 
of  the  true  owner  shall  not  constructively  intervene  between  them,  but 
such  continuity  and  connection  may  be  affected  by  any  conveyance, 
agreement,  or  understanding  which  has  for  its  object  a  transfer  of  the 
rights  of  the  possessor,  or  of  his  possession,  and  is  accompanied  by 
a  transfer  of  possession  in  fact." 

This  is  in  substantial  accord  with  the  doctrine  as  stated  by  Judge 
Wright  in  Marr  v.  Gilliam,  which  is  approved  by  us.  There  must  be 
a  privity  of  estate  connecting  the  successive  possessions,  and  a  trans- 
fer of  the  possessory  right  by  grant,  inheritance,  devise,  or  contract, 
verbal  or  written.  The  mere  fact  of  successive  possessions  appearing, 
and  nothing  more,  will  not  constitute  such  privity.  If  the  contrary 
rule  were  adopted,  then  any  independent  trespasser  entering  upon  land 
simultaneously  with  the  abandonment  of  it  by  a  prior  trespasser  could 
connect  the  two  possessions,  without  any  pretense  of  a  privity  of  es- 


5G8  TITLE — IN    GENERAL 

tate,  by  merely  showing  that  there  had  been  no  actual  hiatus  between 
the  possessions.  The  deed  to  Church  does  not  embrace  the  land  in 
dispute,  and  there  is  no  evidence  that  Warner  undertook  to  transfer 
to  Church  his  possessory  right  to  it.  On  the  contrary,  it  is  shown  tliat 
he  was  ignorant  of  having  such  right.  There  is  no  privity  of  estate 
between  them  in  respect  to  this  land.  Warner  both  acquired  and 
abandoned  his  possessory  right  in  ignorance  of  its  existence.  The 
entry  by  Church  was  a  new  disseisin,  and  a  new  period  of  limitation 
began.    The  decree  of  the  chancellor  is  affirmed.^" 

10  Tbe  doctrine  of  tacking  may  be  modified  or  abrogated  In  some  states  by 
the  local  statutes.  For  example,  it  is  held  in  South  Carolina  that,  under  the 
statute  in  that  state  governing  adverse  possession,  the  possession  to  be  ad- 
verse must  be  continued  by  the  same  person  for  the  statutory  period  of  ten 
years,  and  that  the  possession  of  one  cannot  be  united  or  taclied  to  that  of 
those  under  whom  he  claims.  Garrett  v.  Weinberg,  48  S.  O.  28,  26  S.  E.  3 
(1896). 


TITLE   BY   DEVISE   AND   DESCENT  569 


TITLE  BY  DEVISE  AND  DESCENT 
I.  Canons  of  Descent^ 


BATES  V.  BROWN. 
(Supreme  Court  of  United  States,  1866.    5  Wall.  710,  18  L.  Ed.  535.) 

This  was  a  writ  of  error  to  the  circuit  court  for  the  northern  dis- 
trict of  Illinois. 

Kinzie  Bates,  the  plaintiff  in  error,  brought  an  action  of  ejectment 
in  that  court  against  Brown,  the  defendant  in  error,  to  recover  cer- 
tain premises.  The  cause  was  submitted  upon  an  agreed  statement 
of  facts,  which,  so  far  as  it  was  necessary  to  consider  them,  were  as 
follows : 

1  On  the  29th  of  September,  1830,  Alexander  Wolcott  bought  of 
the  state  of  Illinois  certain  lands,  of  which  those  in  controversy  were 
a  part.  At  the  time  of  the  transaction  he  paid  the  purchase-money, 
and  received  the  usual  certificate. 

2.  He  died  on  the  30th  of  October,  1830,  leaving  a  daughter,  Mary 
Ann  Wolcott,  his  only  child,  and  his  wife,  Eleanor,  him  surviving. 
He  left  a  will,  duly  executed,  which  contained  the  following  provision : 
"I  further  give  and  devise  to  my  said  wife,  Eleanor  M.  Wolcott,  and 
my  said  daughter,  all  my  freehold  estate  whatsoever,  to  hold  to  them, 
the  said  Eleanor  M.  Wolcott  and  Mary  Ann  Wolcott,  their  heirs  and 
assigns  forever." 

3.  Mary  Ann  Wolcott,  the  daughter,  died  on  the  16th  of  January, 
1832,  aged  seven  years,  intestate  and  without  issue. 

4.  On  the  13th  of  May,  1833,  Eleanor  M.  Wolcott  conveyed  to 
David  Hunter,  his  heirs  and  assigns,  with  a  covenant  of  general  war- 
ranty, the  premises  in  controversy. 

5.  On  the  5th  of  July,  1833,  a  patent  was  issued  by  the  governor 
of  Illinois  for  the  land  purchased  by  Alexander  Wolcott,  as  before 
stated,  to  his  "legal  representatives,  heirs,  and  assigns." 

6.  Eleanor  M.  Wolcott,  his  widow,  married  George  C.  Bates  on  the 
26th  of  May,  1836. 

7.  The  plaintiff,  Kinzie  Bates,  was  the  issue  of  that  marriage,  and 
was  born  on  the  13th  of  April,  1838,  and  was  the  only  child  of  his 
parents. 

8.  His  mother  died  on  the  1st  of  August,  1849,  leaving  her  hus- 
band, George  C.  Bates,  then  and  still  surviving. 

The  plaintiff  claimed  title  as  the  heir  at  law  of  his  deceased  half 
sister,  Mary  Ann  Wolcott,  under  the  rule  of  the  common  law,  gen- 

1  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  242. 


570  TITLE   BY    DEVISE    AND    DESCENT 

erally  known  as  that  of  "shifting  inheritance;''  maintaining  that  al- 
though at  the  time  of  the  decease  the  mother  was  the  presumptive  heir 
of  the  said  Mary  Ann,  yet  that  by  his  own  birth  a  nearer  heir  was 
created,  and  that  the  estate  thus  placed  in  the  mother  was  divested 
from  her,  and  vested  in  him,  the  son. 

To  understand  the  matter  fully  it  may  be  well  to  state  that  the  con- 
gressional ordinance  of  1787  for  the  government  of  the  Northwestern 
Territory,  of  which  Illinois  was  originally  part,  created  a  court  which 
it  declared  should  have  "common  law  jurisdiction;"  and  the  ordinance 
guaranteed  also  to  the  people  of  the  territory  "judicial  proceedings, 
according  to  the  course  of  the  common  law."  This  ordinance  declared 
that  the  estates  of  persons  dying  intestate  "shall  descend  to  and  be 
distributed  among  their  children,  and  the  descendants  of  a  deceased 
child,  in  equal  parts ;  the  descendants  of  a  deceased  child  or  grand- 
child to  take  the  share  of  their  deceased  parent  in  equal  parts  among 
them;  and  when  there  shall  be  no  children  or  descendants,  then  in 
equal  parts  to  the  next  of  kin,  in  equal  degree;  and  among  collaterals 
the  children  of  a  deceased  brother  or  sister  of  the  intestate  shall  have, 
in  equal  parts  among  them,  their  deceased  parent's  share ;  and  there 
shall  in  no  case  be  a  distinction  between  kindred  of  the  whole  and 
half  blood." 

In  1819,  after  Illinois  had  become  a  state,  a  statute  adopted  "the 
common  law  of  England"  in  general  terms ;  and  in  1845  another  stat- 
ute declared  that  the  common  law  of  England,  "so  far  as  the  same 
is  applicable  and  of  a  general  nature,  shall  be  the  rule  of  decision, 
and  shall  be  considered  as  in  full  force  until  repealed  by  legislative 
authority." 

At  the  time  of  the  decease  of  Mary  Ann  Wolcott,  the  statute  of 
Illinois  governing  the  descent  of  the  real  estate  of  persons  dying  in- 
testate was  as  follows :  "Estates,  both  real  and  personal,  of  resident 
or  non-resident  proprietors  in  this  state,  dying  intestate,  or  whose  es- 
tates, or  any  part  thereof,  shall  be  deemed  and  taken  as  intestate 
estate,  and  after  all  just  debts  and  claims  against  such  estate  shall 
be  paid  as  aforesaid,  shall  descend  to  and  be  distributed  to  his  or 
her  children,  and  their  descendants,  in  equal  parts ;  the  descendants 
of  a  deceased  child,  or  grandchild,  taking  the  share  of  their  deceased 
parent  in  equal  parts  among  them ;  and  when  there  shall  be  no  chil- 
dren of  the  intestate,  nor  descendants  of  such  children,  and  no  widow, 
then  to  the  parents,  brothers,  ajid  sisters  of  the  deceased  person,  and 
their  descendants,  in  equal  parts  among  them,  allowing  to  each  of  the 
parents,  if  living,  a  child's  part,  or  to  the  survivor  of  them,  if  one 
be  dead,  a  double  portion,  and  if  there  be  no  parent  living,  tlien  to 
the  brothers  and  sisters  of  the  intestate  and  their  descendants ;  when 
there  shall  be  a  widow,  and  no  child  or  children,  or  descendants  of  a 
child  or  children  of  the  intestate,  then  the  one-half  of  the  real  estate, 
and  the  whole  of  the  personal  estate,  shall  go  to  such  widow  as  her 


CANONS    OF   DESCENT  571 

exclusive  estate  forever,  subject  to  her  entire  and  absolute  disposition 
and  control,  to  be  governed  in  all  respects  by  the  same  ruies  and  reg- 
ulations as  are,  or  may  be,  provided  in  cases  of  estates  of  femes  sole ; 
if  there  be  no  children  of  the  intestate,  or  descendants  of  such  chil- 
dren, and  no  parents,  brothers,  or  sisters,  or  descendants  of  brothers 
and  sisters,  and  no  widow,  then  such  estate  shall  descend  in  equal 
parts  to  the  next  of  kin  to  the  intestate,  in  equal  degree,  computing 
by  the  rules  of  the  civil  law ;  and  there  shall  be  no  representation 
among  collaterals,  except  with  the  descendants  of  the  brothers  and 
sisters  of  the  intestate ;  and  in  no  case  shall  there  be  a  distinction  be- 
tween the  kindred  of  the  whole  and  half  blood,  saving  to  the  widow, 
in  all  cases,  her  dower  of  one-third  part  of  the  real  for  life,  and  the 
one-third  part  of  the  "personal  estate  forever." 

The  court  below  gave  judgment  for  the  defendant. 

Mr.  Justice  Swayne  delivered  the  opinion  of  the  court,  havijig  first 
stated  the  case,  and  quoted  the  statute  relating  to  descents  just  above 
set  out. 

Mary  Ann  Wolcott,  from  whom  the  plaintiff  in  error  claims  to  have 
derived  his  title  by  inheritance,  died  nearly  four  years  before  his 
birth.  During  all  the  intervening  time  it  is  not  denied  that  the  title 
was  vested  in  his  mother  and  her  grantee.  Such  was  the  effect  of 
the  statute.  It  is  clear  in  its  language,  and  there  is  no  room  for  con- 
troversy upon  the  subject.  Although  born  after  the  title  become  thus 
vested,  he  insists  that  upon  his  birth  it  became,  to  the  extent  of  his 
claim,  divested  from  the  grantee  and  vested  in  him.  His  later  birth 
and  relationship  to  the  propositus,  he  contends,  is  to  be  followed  by 
the  same  results  as  if  he  had  been  living  at  the  time  of  her  death. 

It  is  alleged  that  the  rule  of  "shifting  inheritances,"  in  the  Eng- 
lish law  of  descent,  is  in  force  in  Illinois,  and  must  govern  the  deci- 
sion of  this  case. 

The  operation  of  this  rule  is  thus  tersely  illustrated  in  a  note  by  Chit- 
ty,  in  his  Blackstone:  "As  if  an  estate  is  given  to  an  only  child,  who 
dies,  it  may  descend  to  an  aunt,  who  may  be  stripped  of  it  by  an  after- 
born  uncle,  on  whom  a  subsequent  sister  of  the  deceased  may  enter, 
and  who  will  again  be  deprived  of  the  estate  by  the  birth  of  a  brother. 
It  seems  to  be  determined  that  every  one  has  a  right  to  retain  the 
rents  and  profits  which  accrued  while  he  was  thus  legally  possessed 
of  the  inheritance.  Harg.  Co.  Litt.  11;  Goodtitle  v.  Newman,  3  Wils. 
526." 

Such  is,  undoubtedly  the  common  law  of  England. 

It  is  said  the  ordinance  of  1787,  which  embraced  the  territory  now 
constituting  the  state  of  Illinois,  and  the  acts  of  the  legislature  of  that 
state  of  the  4th  of  February,  1819,  and  of  the  3d  of  March,  1845, 
are  to  be  considered  in  this  connection. 

The  ordinance  created  a  court  which  it  declared  "shall  have  com- 
mon law  jurisdiction,"  and  it  guaranteed  to  the  people  of  the  terri- 


572  TITLE    BY    DEVISE    AND    DESCENT 

tory  "judicial  proceedings  according  to  the  course  of  the  common 
law."  There  is  no  allusion  in  it  to  the  common  law  but  these.  The 
two  acts  of  the  legislature  contain  substantially  the  same  provisions. 
What  is  expressed  in  the  second  act,  and  not  in  the  first,  is  clearly 
implied  in  the  former.  The  latter  declared  that  "the  common  law  of 
England,  so  far  as  the  same  is  applicable  and  of  a  general  nature," 
.  .  .  "shall  be  the  rule  of  decision,  and  shall  be  considered  as  in  full 
force  until  repealed  by  legislative  authority."  Mary  Ann  Wolcott 
died,  and  the  plaintiff  in  error  was  born  before  this  act  became  a  law, 
but  it  may  be  properly  referred  to  as  containing  an  exposition  of  the 
legislative  intent  in  the  prior  act.  Although  the  former  act  adopts 
"the  common  law  of  England"  in  general  terms,  it  was  undoubtedly 
intended  to  produce  that  result  only  so  far  as  that  law  was  "applica- 
ble and  of  a  general  nature." 

By  the  common  law,  actual  seizin,  or  seizin  in  deed,  is  indispensable 
to  the  inheritable  quality  of  estates.  If  the  ancestor  were  not  seized, 
however  clear  his  right  of  property,  the  heir  cannot  inherit. 

According  to  the  canons  of  descent,  hereditaments  descend  lineally, 
but  can  never  ascend.  This  rule  is  applied  so  rigidly  that  it  is  said 
"the  estate  shall  rather 'escheat  than  violate  the  laws  of  gravitation." 

The  male  issue  is  admitted  before  the  female.  When  there  are  two 
or  more  males,  the  eldest  only  shall  inherit,  but  females  altogether. 

Lineal  descendants,  in  infinitum,  represent  their  ancestors,  standing 
in  the  same  place  the  ancestor  would  have  stood,  if  living. 

On  failure  of  lineal  descendants  of  the  ancestor,  the  inheritance 
descends  to  his  collateral  relations — being  of  the  blood  of  the  first 
purchaser — subject  to  the  three  preceding  rules. 

The  collateral  heir  of  the  intestate  must  be  his  collateral  kinsman 
of  the  whole  blood. 

In  collateral  inheritances,  the  male  stock  is  preferred  to  the  female. 
Kindred  of  the  blood  of  the  male  ancestor,  however  remote,  are  ad- 
mitted before  those  of  the  blood  of  the  female,  however  near,  unless 
where  the  lands  have,  in  fact,  descended  from  a  female. 

These  principles  sprang  from  the  martial  genius  of  the  feudal  sys- 
tem. When  that  system  lost  its  vigor,  and  in  effect  passed  away,  they 
were  sustained  and  cherished  by  the  spirit  which  controlled  the  civil 
polity  of  the  kingdom.  The  celebrated  statute  of  12  Car.  II,  c.  24, 
which  Blackstone  pronounces  a  greater  acquisition  to  private  prop- 
erty than  Magna  Charta,  was  followed  by  no  change  in  the  canons  of 
descent.  The  dominant  principles  in  the  British  constitution  have  al- 
ways been  monarchical  and  aristocratic.  These  canons  tend  to  prevent 
the  diffusion  of  landed  property,  and  to  promote  its  accumulation  in 
the  hands  of  the  few.  They  thus  conserve  the  splendor  of  the  no- 
bility and  the  influence  of  the  leading  families,  and  rank  and  wealth 
are  the  bulwarks  of  the  throne.  The  monarch  and  the  aristocracy 
give  to  each  other  reciprocal  support.     Power  is  ever  eager  to  en- 


CANONS  OF  DESCENT  57$ 

large  and  perpetuate  itself,  and  the  privileged  classes  cling  to  these 
rules  of  descent  with  a  tenacity  characteristic  of  their  importance — 
as  means  to  the  end  they  are  intended  to  help  to  subserve. 

Before  the  Revolution,  some  of  the  colonies  had  passed  laws  reg- 
ulating the  descent  of  real  property  upon  principles  essentially  differ- 
ent from  those  of  the  common  law.  In  most  of  them  the  common 
law  subsisted  until  after  the  close  of  the  Revolution  and  the  return 
of  peace.  It  prevailed  in  Virginia  until  the  act  of  her  legislature  of 
1785  took  effect,  and  it  was,  perhaps,  the  law  upon  this  subject  in 
"the  Northwestern  Territory,''  at  the  time  of  its  cession  in  1784  by 
Virginia  to  the  United  States.  With  the  close  of  the  Revolution 
came  a  new  state  of  things.  There  was  no  monarch,  and  no  privileged 
class.  The  equality  of  the  legal  rights  of  every  citizen  was  a  maxim 
universally  recognized  and  acted  upon  as  fundamental.  The  spirit 
from  which  it  proceeded  has  founded  and  shaped  our  institutions, 
state  and  national,  and  has  impressed  itself  upon  the  entire  juris- 
prudence of  the  country.  One  of  its  most  striking  manifestations  is 
to  be  found  in  the  legislation  of  the  states  upon  the  subject  under 
consideration.  Of  the  results  an  eminent  writer  thus  speaks :  "In 
the  United  States  the  English  common  law  of  descents,  in  its  most 
essential  features,  has  been  universally  rejected,  and  each  state  has 
established  a  law  of  descents  for  itself." 

Another  writer,  no  less  eminent,  upon  this  topic  says :  "In  the  law 
of  descents  there  is  an  almost  total  change  of  the  common  law.  It 
is  radically  new  in  each  state,  bearing  no  resemblance  to  the  common 
law  in  most  of  the  states,  and  having  great  and  essential  differences 
in  all." 

So  far  as  British  law  was  taken  as  the  basis  of  this  legislation,  in 
the  different  States,  it  was  the  statutes  of  Charles  II  and  James  II 
respecting  the  distribution  of  personal  property,  and  not  the  canons 
of  descent  of  the  common  law.  The  two  systems  are  radically  dif- 
ferent in  their  principles. 

The  ordinance  of  1787  contains  a  complete  series  of  provisions  upon 
the  subject.  They  are  the  type  and  reflex  of  the  action  of  many  of 
the  states  at  that  time.  The  ordinance  declared  that  the  estates  df 
persons  dying  intestate  "shall  descend  to  and  be  distributed  among 
their  children,  and  the  descendants  of  a  deceased  child,  in  equal  parts ; 
the  descendants  of  a  deceased  child  or  grandchild  to  take  the  share 
of  their  deceased  parent  in  equal  parts  among  them ;  and  when  there 
shall  be  no  children  or  descendants,  then  in  equal  parts  to  the  next 
of  kin,  in  equal  degree;  and  among  collaterals  the  children  of  a  de- 
ceased brother  or  sister  of  the  intestate  shall  have,  in  equal  parts 
among  them,  their  deceased  parent's  share;  and  there  shall  in  no 
case  be  a  distinction  between  kindred  of  the  whole  and  half  blood." 

We  find  here  not  a  trace  of  the  common  law.  These  provisions 
are  diametrically  opposed  to  all  its  leading  maxims.    We  cannot  infer 


574  TITLE   BY   DEVISE   AND   DESCENT 

from  their  silence  that  anything  not  expressed  was  intended  to  be 
adopted  from  that  source  by  imphcation  or  construction. 

The  statute  governing  the  descent  of  real  estate,  already  referred 
t.o,  is  also  a  complete  code  upon  the  subject  of  which  it  treats.  It  is 
to  be  presumed  to  cover  every  case  for  which  the  legislature  deemed 
it  proper  to  provide.  If  the  same  question  had  come  before  us  under 
the  ordinance,  we  should  have  said  with  reference  to  the  common 
law,  conflict  is  abrogation  and  silence  is  exclusion.  The  spirit  and 
aims  of  the  two  systems  are  wholly  different.  One  seeks  to  promote 
accumulation — the  other  diffusion.  One  recognizes  and  cherishes  the 
exclusive  claim  of  the  eldest  son — the  other  the  equal  rights  of  all  his 
brothers  and  sisters.  The  latter  makes  no  distinction  on  account  of 
age,  sex,  or  half  blood.  We  apply  to  the  statute  also  the  remark  that 
silence  is  exclusion.  It  speaks  in  the  present  tense — of  the  state  of 
things  existing  at  the  time  of  the  death  of  the  intestate,  and  not  of  any 
change  or  different  state  of  things  which  might  occur  thereafter.  If 
the  legislature  had  designed  to  provide  for  this  case,  according  to  the 
rule  insisted  upon,  we  cannot  doubt  that  they  would  have  said  so  in 
express  terms.  The  statute  bears  no  marks  of  haste  or  inattention. 
We  cannot  believe  it  was  intended  to  leave  a  rule  of  the  common 
law  so  well  known,  and  so  important,  to  be  deduced  and  established 
only  by  the  doubtful  results  of  discussion  and  inference.  The 
draughtsman  of  the  bill  could  not  have  overlooked  it,  and  the  silence 
of  the  statute  is  full  of  meaning. 

One  class  of  posthumous  children  are  provided  for.  We  see  no 
reason  to  believe  that  another  was  intended  to  be  included,  especially 
when  the  principle  involved  is  so  important.  The  intention  of  the 
legislature  constitutes  the  law.  That  intention  is  manifested  alike 
by  what  they  have  said  and  by  what  they  have  omitted  to  say.  Their 
language  is  our  guide  to  their  meaning,  and  under  the  circumstances 
we  can  recognize  none  other.  We  cannot  go  farther  than  they  have 
gone.  The  plaintiff'  in  error  asks  us,  in  eft'ect,  to  interpolate  into  the 
statute  a  provision  which  it  does  not  contain.  Were  we  to  do  so, 
we  should  assume  the  function  of  the  legislature  and  forget  that  of 
the  court.  The  limit  of  the  law  is  the  boundary  of  our  authority, 
and  we  may  not  pass  it. 

The  principle  contended  for  was  applied  in  the  case  of  Dunn  v. 
Evans,  7  Ohio,  169,  pt.  1.  The  case  is  briefly  reported,  and  no  argu- 
ments of  counsel  appear.  It  was  also  adopted  in  North  Carolina,  in 
Cutlar  v.  Cutlar,  9  N.  C.  324,  and  in  Caldwell  v.  Black,  27  N.  C. 
463.  No  recognition  of  it  is  to  be  found,  it  is  believed,  in  any  other 
American  adjudication. 

The  subject  was  elaborately  examined  by  the  supreme  court  of 
Ohio  in  Drake  v.  Rogers,  13  Ohio  St.  21,  and  Dunn  v.  Evans  was 
overruled.  It  came  before  the  supreme  court  of  Indiana  in  Cox  v. 
Matthews,  17  Ind.  367,  and  received  there  also  a  thorough  examina- 


CANONS   or  DESCENT  575 

ti'on.  The  result  was  the  same  as  in  the  last  case  in  Ohio.  The  doc- 
trine was  repudiated. 

The  court  said :  "Under  the  laws  of  this  state  it  is  contemplated 
that  such  change  of  title  from  one  living  person  to  another  is  to  be 
made  by  deed  duly  executed,  rather  than  by  our  statutes  of  descent. 
*  *  *  The  feudal  policy  of  tying  up  estates  in  the  hands  of  a 
landed  aristocracy,  which  had  much  to  do  with  the  shifting  of  descents 
as  recognized  by  the  English  canons  of  descent,  is  contrary  to  the 
spirit  of  our  laws  and  the  genius  of  our  institutions.  It  has  been 
the  policy,  in  this  state,  and  in  this  country  generally,  not  only  to 
let  estates  descend  to  heirs  equally,  without  reference  to  sex  or  primo- 
geniture, but  also  to  make  titles  secure  and  safe  to  those  who  may 
purchase  from  heirs  upon  whom  the  descent  may  be  cast.  Our  laws 
have  defined  and  determined  who  shall  inherit  estates  upon  the  death 
of  a  person  seized  of  lands.  When  those  thus  inheriting  make  con- 
veyances, the  purchasers  have  a  right  to  rely  upon  the  title  thus  ac- 
quired. If  titles  thus  acquired  could  be  defeated  by  the  birth  of 
nearer  heirs,  perhaps  years  afterwards,  great  injustice  might,  in  many 
cases,  be  done,  and  utter  confusion  and  uncertainty  would  prevail 
in  reference  to  titles  thus  acquired.  We  are  of  opinion  that  the  doc- 
trine of  shifting  descents  does  not  prevail  under  our  laws,  any  more 
than  the  other  English  rule,  that  kinsmen  of  the  whole  blood,  only, 
can  inherit." 

The  rule  is  sanctioned  by  no  American  writer  upon  the  law  of 
descents.  Judge  Reeve  (Reeve,  Des.  p.  '74,  Int.),  speaking  of  distrib- 
utees, says :  "I  am  of  opinion  that  such  posthumous  children  who 
were  born  at  the  time  of  the  distribution  were  entitled,  and  none  oth- 
ers. 

It  is  to  be  regretted  that  we  have  not  the  benefit  of  an  adjudication 
by  the  supreme  court  of  Illinois  upon  the  subject. 

Their  interpretation — the  statute  being  a  local  one — would  of  course 
be  followed  in  this  court.  We  have,  however,  no  doubt  of  the  sound- 
ness of  the  conclusion  we  have  reached. 

We  find  no  error  in  the  record,  and  the  judgment  of  the  circuit 
court  is  affirmed.^ 

2  See,  also,  Gardner  v.  Collins,  2  Pet.  58,  7  L.  Ed.  347  (1829),  as  to  descent 
of  remainders  and  reversions  and  Davis  v.  Rowe,  6  Rand.  (Va.)  355  (1828), 
for  analogies  between  the  English  statutes  of  distribution  and  American  stat- 
utes of  descent.  In  the  United  States,  real  estate  of  an  intestate  will  descend 
by  common  law  rules,  except  where  specifically  changed  by  statute.  John- 
son V,  Haines,  4  Dall.  64,  1  L.  Ed.  743  (1799);  Barnitz  v.  Casey,  7  Cranch, 
4&6,  3  L.  Ed.  403  (1813). 


576  TITLE    BY   OFFICIAL    GEANT? 


TITLE  BY  OFFICIAL  GRANT 
I.  Tax  Titles^ 


CONNERS  V.  CITY  OF  LOWELL. 

(Supreme  Judicial  Court  of  Massachusetts,  1911.    209  Mass.  Ill,  95  N.  E.  412, 

Ann.  Cas.  1912B,  627.) 

Appeals  from  Superior  Court,  Middlesex  County;  Robert  O.  Har- 
ris,   Judge. 

Actions  by  Dennis  E.  Conners,  by  Joseph  Walsh,  and  by  Edward 
F.  Conners  against  the  City  of  Lowell.  There  were  judgments  grant- 
ing insufficient  relief  to  plaintiffs,  and  they  and  the  city  appeal.  Af- 
firmed in  part;   reversed  in  part. 

RuGG,  J.  These  are  actions  under  St.  1909,  c.  490,  pt.  2,  §  45  (for- 
merly R.  L.  c.  13,  §  44),  to  recover  money  paid  for  tax  deeds  which, 
it  is  claimed,  by  reason  of  error,  omissions  or  informality  in  the  sales, 
conveyed  no  title. 

1.  The  form  of  tax  deed  used  in  several  sales  was  that  prescribed 
in  St.  1901,  c.  519.  This  form  was  in  the  law  less  than  six  months, 
having  been  repealed  by  R.  L.  c.  227,  and  supplanted  by  No.  14  of 
schedule  of  forms  attached  to  R.  L.  c.  13,  §  87.  The  question  is 
whether  this  form,  employed  since  1902,  was  "suitable"  under  R.  L. 
c.  13,  §  87.  The  fact  that  the  Legislature  permitted  its  use  for  a 
brief  period,  and  then  in  substance  restored  important  recitals  which 
had  existed  in  earlier  statutes,  does  not  necessarily  make  it  a  suitable 
form  for  any  other  time  than  that  during  which  it  was  expressly  au- 
thorized. The  requirements  of  law  as  to  a  tax  sale  were  the  same  both 
before  and  after  1901. 

A  tax  deed  in  order  to  be  valid  as  a  suitable  instrument  of  con- 
veyance, when  not  in  the  language  of  the  statute,  must  set  out  either 
in  precise  phrase  or  by  fair  intendment  to  a  reasonable  certainty  a 
statement  of  performance  of  all  these  acts  which  are  essential  to  the 
existence  of  a  legal  cause  for  selling  at  the  time  when  the  sale  was 
made.  Although  the  terms  of  a  tax  deed  need  not  show  actual  com- 
pliance to  a  technical  nicety  with  the  minute  particulars  of  statutory 
requirements  in  making  the  sale  itself,  yet  they  must  satisfy  a  reason- 
able mind  without  resort  to  extrinsic  evidence  that  a  valid  cause  of 
sale  in  fact  existed.  The  collector  of  taxes  has  a  naked  power  to  sell 
real  estate  to  pay  the  lien  for  taxes,  and  he  must  not  only  strictly  con- 
form to  all  the  conditions  precedent  to  the  exercise  of  his  power,  but 
his  deed  must  also  contain  all  the  recitals  of  substance  which  the  stat- 

1  For  discussion  of  principles,  see  Burdiclj,  Real  Prop.  §§  24S-250. 


TAX   TITLES  577 

ute  imposes,  both  for  the  information  of  the  purchaser  and  of  the 
owner  and  of  those  claiming  under  each.  Charland  v.  Home  for  Aged 
Women,  204  Mass.  563,  91  N.  E.  146,  134  Am.  St.  Rep.  696,  and  cases 
.cited;  Harrington  v.  Worcester,  6  Allen,  576;  Langdon  v.  Stewart, 
142  Mass.  576,  8  N.  E.  605.  Adherence  to  the  somewhat  strict  rules 
which  have  been  established  as  to  tax  deeds  assumes  a  new  importance 
in  view  of  the  sweeping  provision  of  St.  1911,  c.  370,  to  the  effect 
that  when  duly  recorded  such  a  deed  "shall  be  prima  facie  evidence  of 
all  facts  essential  to  its  validity."  Compare  St.  1901,  c.  197;  R.  L. 
c.  13,  §  43;  St.  1902,  c.  423.  Several  objections  are  made  to  the  deeds 
based  on  their  variation  from  said  form  No.  14. 

(a)  The  newspapers  in  which  the  notices  of  sale  were  printed  were 
described  by  name  as  the  "Lowell  Sun,"  "Lowell  Daily  Telegram" 
and  "L'Etoile"  without  any  further  assertion  as  to  the  place  of  pub- 
lication than  that  it  was  "in  the  county  where  said  real  estate  lies." 
Although  there  is  no  statement  in  the  deed  of  the  city  or  town  within 
which  the  real  estate  lies,  it  may  fairly  be  inferred  from  the  circum- 
stance that  the  deed  was  headed  "Commonwealth  of  Massachusetts," 
that  the  Lowell  Sun  and  the  Lowell  Daily  Telegram  were  published 
in  Lowell  in  this  commonwealth.  Newspapers  sometimes  bear  as  a 
part  of  their  title  the  name  of  a  small  country  town,  although  not 
published  there  (Rose  v.  Fall  River  Sav.  Bank,  165  Mass.  273,  43  N. 
E.  93;  Brown  v.  Wentworth,  181  Mass.  49,  62  N.  E.  984),  but  no 
one  reading  these  deeds  would  have  any  reasonable  doubt  as  to  the 
fact  that  these  newspapers  were  published  in  the  city  of  Lowell.  This 
is  not  true  of  the  newspaper  called  L'Etoile.  There  is  nothing  about 
this  name  to  indicate  the  place  of  its  publication.  Although  the  words 
of  the  statute  reach  only  to  "the  name  of  the  newspaper,"  yet  in  order 
to  show  the  existence  of  a  legal  cause  of  sale  the  place  of  its  publica- 
tion as  required  by  R.  L.  c.  13,  §  1,  must  appear  in  the  deed. 

(b)  R.  L.  c.  13,  §  40,  provides  that  the  notice  of  sale  shall  be  posted 
"in  some  convenient  and  public  place."  The  deeds  recite  such  post- 
ing "in  city  hall,  a  public  place  in  said  Lowell."  It  is  not  every  public 
place  which  would  be  "convenient"  for  putting  up  notices  of  tax  sales. 
City  halls  as  matter  of  common  knowledge  are  used  generally  for  such 
purposes.  Halls  of  this  character  exist  in  all  municipalities,  and  the 
statement  in  a  tax  deed,  that  such  a  place  is  convenient  for  this  use, 
affects  no  right  of  the  person  assessed  or  of  the  purchaser,  and  can 
add  nothing  to  their  knowledge.  Under  these  circumstances  failure  to 
follow  the  prescribed  form  was  not  fatal.  A  quite  different  case 
would  arise  if  the  public  place  described  was  not  one  commonly  known 
to  be  convenient  for  such  purposes. 

"(c)  It  was  a  condition  precedent  to  the  right  of  the  tax  collector  to 

sell  that  the  advertisement  should  contain  "the  names  of  all  owners 

known  to  the  collector."    R.  L.  c.  13,  §  38.     Omission  of  those  names 

from  the  advertisement  would  deprive  the  collector  of  any  cause  for 

Bubd.Cas.Real  Prop. — 37 


578  TITLE    BT   OFFICIAL    GRAN'l 

making  the  sale.  All  the  statutory  forms  save  that  in  St.  1901,  c.  519, 
require  such  a  statement.  Without  such  a  statement  the  deed  in  an 
essential  particular,  not  fairly  inferable  from  other  parts  of  the  in- 
strument, fails  to  show  the  existence  of  a  cause  for  sale. 

(d)  The  narration  of  the  terms  of  the  advertisement  set  out  in  the 
deed  was  that  the  sale  would  be  for  "nonpayjnent"  of  taxes,  while  said 
form  No.  14  was  in  the  words  that  the  sale  would  be  for  the  "dis- 
charge and  payment"  of  the  tax.  The  statement  in  the  deed  was 
supplemental  as  to  cause,  while  that  in  the  form  indicates  the  pur- 
pose of  the  sale.  It  is  plain  from  the  deed  that  the  only  purpose  of 
the  sale  was  to  satisfy  the  tax.  In  this  regard  no  substantial  error 
appears. 

(e)  R.  L.  c.  13,  §  38,  requires  that  the  published  notice  of  the  sale 
shall  "contain  a  substantially  accurate  description  of  the  several  rights, 
lots  or  divisions  of  the  land  to  be  sold,"  while  by  section  41  the  col- 
lector must  sell  "the  smallest  undivided  part  of  the  land  which  will 
satisfy  the  taxes  and  necessary  intervening  charges  or  the  whole  if 
no  person  offers  to  take  an  undivided  part."  The  deed  states  that 
the  advertisement  was  for  the  sale  of  "the  smallest  undivided  part  of 
said  estate,"  sufficient  to  discharge  the  lien.  The  sale  was  of  the 
whole  and  not  any  undivided  part.  The  sale  could  not  lawfully  have 
been  made  of  any  larger  estate  than  had  been  advertised.  Hence  in 
this  particular  the  form  of  deed  is  defective  in  the  statement  of  a 
cause  for  the  sale  of  the  whole.  All  sales  in  which  this  form  was  used 
were  invalid. 

It  is  not  necessary  to  determine  whether  these  deeds  were  also  in- 
valid in  not  containing  enough  to  warrant  a  fair  inference  as  to  the 
municipality  within  which  the  land  conveyed  was  situated. 

2.  Certain  lands  were  properly  assessed  to  the  "heirs  of  George  T. 
Woodward"  and  to  the  "heirs  of  Irene  E.  Richardson,"  under  R.  L. 
c.  12,  §  21,  In  these  instances  the  records  of  the  probate  court  for 
the  county,  in  which  Lowell  is  located,  showed,  on  the  1st  of  May  of 
the  year  in  which  the  taxes  were  assessed,  who  the  heirs  of  Wood- 
ward and  Richardson  severally  were  and  that  one  or  more  of  the  heirs 
of  each  resided  in  Lowell.  The  recitals  in  the  deeds  of  this  class 
were  that  demand  was  made  upon  "the  heirs"  of  deceased.  The  col- 
lector is  required  to  serve  a  demand  for  the  payment  of  the  tax  upon 
every  resident  assessed,  or  in  case  of  heirs  of  a  deceased  person,  upon 
one  of  them,  and  to  state  in  his  deed  "the  name  of  the  person  on  whom 
the  demand  *  *  *  was  made."  R.  L.  c.  13,  §§  14  and  43.  To 
say  that  a  demand  has  been  made  upon  the  heirs  of  an  intestate  is 
not  giving  the  name  of  the  person  upon  whom  the  demand  was  made. 
The  two  sections  cited  impose  upon  the  collector  the  duty  of  finding 
a  resident  heir,  if  there  is  one,  making  the  demand  upon  him,  and  then 
naming  him  in  the  deed.  To  name  a  person  is  not  tiie  same  as  to 
describe  him.  The  name  of  a  person  is  the  distinctive  characterization 
in  words  by  which  he  is  known  and  distinguished  from  others.     Such_ 


TAX   TITLES  579 

a  designating-  appellation  was  not  given  by  the  words  "heirs  of"  a 
person.  Tax  deeds  lacking  it  are  invalid.  Reed  v.  Crapo,  127  Mass. 
39.  Assessors  are  charged  with  notice  of  what  may  be  found  upon  the 
probate  records  in  determining  whether  to  make  an  assessment  to 
the  heirs  or  devisees  of  one  deceased.  Tobin  v.  Gillespie,  152  Mass. 
219,  25  N.  E.  88.  There  is  no  hardship  in  holding  the  tax  collector 
to  the  same  investigation,  if  necessary,  in  ascertaining  the  name  of 
an  heir. 

3.  The  advertisement  of  sale  in  several  instances  was  printed  in 
English  in  a  newspaper  printed  in  the  French  language.  R.  L.  c. 
13,  §  1,  provides  that  "Publications,  as  applied  to  any  notice,  adver- 
tisement or  other  instrument,  the  publication  of  which  is  required  by 
law,  shall  mean  the  act  of  printing  it  *  *  *  in  a  newspaper  pub- 
lished in  the  city  or  town,  if  any,  otherwise  in  the  county,  where 
the  land  *  *  *  jg  situated."  English  is  the  language  of  this 
country.  This  conception  is  fundamental  in  the  administration  of  all 
public  affairs.  It  is  an  elemental  truth,  so  axiomatic  in  its  nature  as 
to  need  no  supporting  authority.  It  is  not  declared  in  the  Consti- 
tution nor  enacted  by  statute.  It  is  so  by  the  universal  customs  of  our 
past  in  colony,  province  and  commonwealth.  Apart  from  the  more 
obvious  considerations,  there  a?re  indications  that  the  English  language 
is  that  of  our  institutions  in  the  requirement  that  no  one  can  be  a 
voter  or  eligible  to  office  unless  able  to  read  the  Constitution  in  English 
(article  20  of  Amendments  to  Constitution),  nor  solemnize  marriage 
unless  able  to  read  and  write  in  that  language  (R.  L.  c.  151,  §  30). 
Instruction  in  the  English  language  is  required  in  all  public  and  pri- 
vate schools.  R.  L.  c.  42,  §  1 ;  Id.  c.  44,  §  2.  It  is  plain  that  a  gen- 
eral public  notice  required  by  law  to  be  published  in  a  newspaper 
must  be  printed  in  English  in  an  English  newspaper.  The  great 
weight  of  authority  supports  this  view.  Auditor  General  v.  Hutchin- 
son, 113  Mich.  245-249,  71  N.  W.  514;  State  v.  Chamberlain,  99  Wis. 
503,  75  N.  W.  62,  40  L.  R.  A.  843;  Chicago  v.  McCoy,  136  111.  344, 
349,  26  N.  E.  363,  11  L.  R.  A.  413;  Graham  v.  King,  50  Mo.  22, 
1 1  Am.  Rep.  401 ;  Road  in  Upper  Hanover,  44  Pa.  277 ;  Wilson  v. 
Trenton,  56  N.  J.  Law,  469,  29  Atl.  183 ;  North  Baptist  Church,  54 
N.  J.  Law,  111,  22  Atl.  1004,  14  L.  R.  A.  62;  State  v.  Jersey  City, 
54  N.  J.  Law,  437,  24  Atl.  571 ;  John  v.  Connell,  71  Neb.  10-16,  98 
N.  W.  457;  Cincinnati  v.  Bickett,  26  Ohio  St.  49.  There  are  deci- 
sions having  a  contrary  appearance  in  Richardson  v.  Tobin,  45  Cal. 
30,  Loze  v.  New  Orleans,  2  La.  427,  and  Kernitz  v.  Long  Island  City, 
50  Hun,  428,  3  N.  Y.  Supp.  144.  So  far  as  they  are  in  conflict  with 
the  principles  here  stated  we  are  not  inclined  to  follow  them.  The 
deeds  which  rest  upon  a  publication  of  the  advertisement  in  a  news- 
paper printed  in  French  are  invalid. 

4.  Certain  lots  of  land  not  of  the  small  character  indicated  in  St. 
1909,  c.  490,  pt.  2,  §  50  (formerly  R.  L.  c.  13,  §  49),  are  described  in 


580  TITLE    BY  OFFICIAL    GRANT 

the  deed  by  lot  numbers,  the  street  and  side  of  street  on  which  located, 
and  the  name  of  all  abutting  owners,  with  the  general  points  of  com- 
pass on  which  the  land  of  abutting  owners  lay,  but  without  further 
designation  by  metes  and  bounds,  and  without  reference  to  any  plan 
upon  which  the  lot  as  numbered  may  be  found.  A  sample  description 
of  this'  kind  was  "three  thousand  seven  hundred  fifty-five  (3,755)  sq. 
feet  of  land,  more  or  less,  being  lots  549-550  on  the  east  side  of  Tan- 
ner street  with  land  now  or  formerly  of  Woonsocket  Inst,  for  Sav. 
on  the  north  and  south  and  Merchants  street  on  the  east  and  Tanner 
street  on  the  west."  While  this  description  reached  nearly  to  the  line 
of  indefiniteness,  it  is  on  the  whole  sufficient.  It  gives  data  enough 
to  enable  one  to  make  a  reasonable  identification  of  the  property.  It 
indicates  a  parcel  of  specified  area,  rectangular  shape,  lying  between 
two  streets  and  between  lots  of  other  defined  owners,  presumably  a 
portion  of  a  large  tract  subdivided  into  smaller  parts.  Practically 
the  same  information  is  conveyed  in  the  instances  when  the  rear  of 
the  lots  bound,  not  upon  a  street,  but  upon  another  named  owner. 
As  matter  of  common  knowledge  it  is  a  kind  of  description  not  in- 
frequently found  in  deeds  especially  of  land  in  the  country.  To  re- 
quire a  greater  particularity  would  impose  upon  the  tax  collector  the 
necessity  of  an  expensive  survey  in  many  cases.  While  the  descrip- 
tions in  a  tax  advertisement  must  be  such  as  to  enable  both  owner 
and  bidder  from  its  terms  to  locate  with  substantial  certainty  the  land 
to  be  sold,  it  need  not  be  so  detailed  as  to  point  out  visually  its  precise 
boundaries  so  that  an  utter  stranger  unacquainted  with  the  locality 
and  ignorant  of  the  neighbors  could  find  it  without  inquiry.  Apply- 
ing the  rule  laid  down  in  Williams  v.  Bowers,  197  Mass.  565-567,  84 
N.  E.  317,  and  the  numerous  cases  there  cited,  and  bearing  in  mind 
that  one  executing  only  a  statutory  power  in  the  sale  of  land  must  be 
held  to  some  strictness,  the  conclusion  follows  that  there  is  no  in- 
validity in  the  deeds  of  this  class. 

5.  The  same  rule  governs  the  deeds,  where  the  description  is  sim- 
ilar in  all  respects  to  those  last  discussed,  except  that  the  land  is  said 
to  be  a  "part  of  lots"  whose  numbers  are  given.  Lot  numbers  with- 
out reference  to  any  plan  upon  which  they  may  be  found  plotted  are 
of  no  further  assistance  in  either  case  than  to  convey  the  informa- 
tion that  the  parcel  described  is  a  subdivision  of  a  larger  tract.  The 
sufficiency  of  the  description  rests  on  its  other  elements. 

6.  An  assessment  of  land  was  made  to  a  person  not  in  possession 
but  holding  a  tax  collector's  deed  thereof,  valid  on  its  face  and  duly 
recorded,  who  had  failed  by  inadvertence  to  file  in  the  registry  of 
deeds  or  with  the  city  treasurer  the  statement  of  his  residence  and 
place  of  business  required  by  R.  L.  c.  13,  §  45.  This  section  is  chiefly 
for  the  benefit  of  the  owner  in  furnishing  him  information  as  to 
where  to  find  the  person  to  whom  he  may  make  tender  for  pur])ose 
of  redeeming.     He  has,  however,  the  alternative  or  cumulative  right 


TAX   TITLES  581 

to  make  payment  to  the  tax  collector.  St.  1902,  c.  443.  It  is  not 
necessary  to  decide  what  effect,  upon  the  rights  and  obligations  be- 
tween themselves  of  one  entitled  to  redeem  and  one  holding  a  tax 
title,  the  failure  of  the  latter  to  comply  with  said  section  45  may 
have.  The  tax  law  contains  no  provision  that  omission  to  record  such 
certificate  shall  render  the  sale  invalid,  as  it  does  respecting  the  time 
within  which  the  deed  shall  be  recorded.  R.  L.  c.  13,  §  43  (now, 
with  subsequent  amendments,  St.  1909,  c.  490,  pt.  2,  §  44).  The  thing 
required  by  said  section  45  can  be  done  only  subsequent  to  the  record 
of  the  tax  deed.  Its  substance  does  not  relate  to  any  matter  inher- 
ently affecting  the  title,  but  solely  to  facilitating  the  ease  of  redemp- 
tion. As  a  general  rule  assessors  in  levying  subsequent  assessments 
and  the  tax  collector  in  selling  thereunder  may  treat  the  holder  of  a 
duly  recorded  tax  deed  valid  on  its  face  as  the  record  owner.  Rogers 
V.  Lynn,  200  Mass.  354,  86  N.  E.  889 ;  Slois  v.  Williams,  205  Mass. 
350,  353,  91  N.  E.  148.  The  purposes  of  the  requirements  of  said  sec- 
tion 45  do  not  appear  to  include  an  obligation  upon  the  assessors  to 
make  a  further  examination  of  the  record,  beyond  finding  a  duly  re- 
corded valid  looking  tax  deed,  to  ascertain  whether  the  holder  has 
recorded  also  the  necessary  certificate  and  to  determine  at  their  peril 
the  sufficiency  of  its  form  and  whether  it  has  been  recorded  within 
a  reasonable  time.  Whatever  may  be  other  effects  of  the  failure  of 
the  purchaser  to  record  such  certificate,  the  tax  deed  is  not  so  af- 
fected thereby  as  to  furnish  no  basis  for  subsequent  assessments. 
See  McNeil  v.  O'Brien,  204  Mass.  594-597,  91  N.  E.  138.  The  deeds 
questioned  upon  that  ground  are  sufficient  in  that  regard. 

8.  Certain  deeds  now  challenged  were  made  on  sales  of  real  estate 
assessed  to  persons  as  owners  whose  title  was  under  tax  deeds,  in 
each  of  which  the  land  was  described  only  by  its  area  in  square  feet, 
more  or  less,  the  street  and  side  thereof  on  which  it  was  located,  and 
the  number  of  the  lot  without  reference  to  any  plan.  I'h  fact,  there 
was  a  private  plan  on  record  at  the  registry  of  deeds  and  aj)lan  at 
the  office  of  the  city  engineer,  on  which  the  several  lots  could  be 
sufficiently  identified.  This  description  was  insufficient.  It  differs 
from  those  discussed  under  paragraphs  4  and  5  of  this  opinion,  in 
that  the  names  of  no  abutting  owners  were  given,  nor  was  there  any- 
thing to  show  the  shape  of  tKe  parcel.  The  designation  of  it  by^a  lot 
number  without  naming  the  plan  or  showing  where  it  might  be  found 
or  giving  any  other  descriptive  circumstance  was  too  indefinite.  The 
tax  deed  was  also  in  the  form  held  insufficient  in  an  earlier  part  of 
this  opinion.  These  deeds  were  therefore  invalid  on  their  face  and 
on  inspection  show  that  they  convey  no  title. 

The  question  is  whether  one  holding  under  such  a  deed  invalid  on 
its  face  "is  a  person  appearing  of  record  as  owner"  within  the  mean- 
ing of  these  words  in  R.  L.>c.  12,  §  15.  See  St.  1909,  c.  490,  pt.  1,  § 
15.    The  rul(;  established  by  Butler  v.  Stark,  139  Mass.  19,  29  N.  E. 


582 


TITLE    BY   OFFICIAL    GRANT 


213,  that  the  holder  of  a  tax  deed  was  such  a  record  owner  has  been 
applied  in  Roberts  v.  Welsh,  192  ^lass.  278,  78  N.  E.  408,  and  Welsh 
V.  Briggs,  204  Mass.  540-552,  90  N.  E.  1146,  to  cases  where  the  tax 
deeds,  good  on  their  face,  were  invalid  by  reason  of  some  error  in  the 
original  assessment  or  otherwise,  not  apparent  upon  an  examination 
of  the  deed  itself.  But  the  rule  has  never  been  extended  to  a  case 
where  the  tax  deed  showed  on  its  face  that  it  conveyed  no  title.  A  tax 
deed  stands  or  falls  on  its  own  unaided  merits.  It  must  be  delivered 
and  recorded  within  30  days  from  the  sale.  Its  w-orth  is  to  be  deter- 
mined as  of  that  date.  It  cannot  be  supplemented  or  changed  by  sub- 
sequent instruments.  Its  errors  and  inaccuracies  cannot  be  corrected, 
nor  can  its  defects  be  supplied  from  any  source.  When  by  its  terms 
it  is  obvious  that  it  does  not  convey  a  title,  it  fails  utterly  to  affect 
the  rights  of  the  original  owner.  He  remains  the  only  person  "appear- 
ing of  record  as  owner"  of  the  property.  It  follows  that  an  assess- 
ment based  upon  a  tax  deed  which  is  invalid  on  its  face  is  not  an  as- 
sessment to  an  owner  of  record.  Sales  founded  upon  such  an  assess- 
ment are  void. 

These  determinations  dispose  of  all  the  deeds  in  question  and  it  is 
not  necessary  to  discuss  the  other  points  argued. 

The  result  is  that  the  judgments  entered  in  the  superior  court  in 
the  actions  in  which  Dennis  E.  Conners  and  Joseph  Walsh  are  the 
plaintiffs  are  affirmed.  The  judgment  in  the  action,  in  which  Ed- 
ward F.  Conners  is  the  plaintiff  is  reversed.     So  ordered.^ 


KERN  V.  CLARKE. 

(Supreme  Court  of  Minnesota,  1894.    59  Minn.  70,  60  N.  W.  809.) 

Appeal  from  district  court,  Wadena  county ;   G.  W.  Holland,  Judge. 

Action  by  Anton  Kern  against  N.  P.  Clarke,  in  which  there  was  a 
judgment  for  plaintiff.  From  an  order  denying  a  motion  for  a  new 
trial,  defendant  appeals.    Reversed. 

Buck,  J.  This  action  involves  the  validity  of  a  tax  judgment,  and 
the  sale  of  real  estate  under  it.  The  delinquent  list  described  the  land 
as  being  the  "S.  E.  4,  N.  E.  4,  and  N.'E.  4,  S.  E.  4,  S.  24,  T.  137, 
R.  35,"  but  the  published  list  described  the  land  as  being  the  "S.  E. 

2  In  accord  with  tbe  views  expressed  by  the  court  in  the  preceding  case, 
that  public  legal  notices  must  be  published  in  the  Enslisb  language,  may  be 
cited  another  recent  case,  namely,  Tylee  v.  Hyde,  GO  Fla.  .389,  52  South.  968 
(1910),  in  which  Chief  Justice  Whitfield  says:  "The  English  language  is  the 
means  recognized  by  our  law  for  communication  and  information ;  and,  while 
a  paper  printed  in  a  foi'eign  language  may  be  a  newspaper,  it  may  not  be 
within  the  purview  of  a  statute  requiring  the  publication  of  legal  notices  de- 
signed for  the  information  of  all  the  people,  where  the  statute  contains  noth- 
ing to  indicate  an  intention  to  include  such  a  publication."  And  see,  also, 
Whiteley  v.  Baltimore,  113  Md.  541,  77  Atl.  882  (1910). 


TAX   TITLES  583 

34,  N.  E.  14,  and  N.  E.  %,  S.  E.  M/'  while  the  tax  judgment  de- 
scribed the  land  as  the  same  as  in  the  delinquent  list.  The  descrip- 
tion in  the  delinquent  list  and  in  the  tax  judgment  were  clearly  in- 
sufficient, and  the  tax  judgment  void  upon  its  face.  We  need  not 
enter  into  any  discussion  upon  this  point,  for  the  question  was  dis- 
tinctly passed  upon  by  this  court  in  Keith  v.  Hayden,  26  Minn.  212, 
2  N.  W.  495 ;  and  that  case  was  cited  approvingly  in  Williams  v.  Land 
Co.,  in  32  Minn.  440,  21  N.  W.  550,  and  Knight  v.  Alexander,  38  Minn. 
384,  Z7  N.  W.  796,  8  Am.  St.  Rep.  675.  That  such  descriptions  are 
void  for  uncertainty  ought  to  be  deemed  the  settled  law  of  this  state, 
without  further  litigation  or  controversy.  /'' 

The  next  point  is  as  to  the  power  or  ^authority  of  the  trial  court  to  [ 
permit  the  plaintiff,  after  the  sale,  to  amend  the  tax  judgment  so  as  ^ 
to' read  as  follow:  "S.  E.  ^,  N.  E.  Ya,  and  N.  E.  %,  S.  E.  H," 
mstead  of  "S.  E.  4,  N.  E.  4,  and  N.  E.  4,  S.  E.  4,"  as  originally  de- 
scribed in  the  judgment.  This  amendment  was  permitted  by  the  court 
upon  application  of  the  plaintiff.  The  judgment  was  entered  on  the 
3d  day  of  August,  1883 ;  and  it  does  not  appear  that  any  application, 
prior  to  the  time  of  the  trial,  had  been  made  to  amend  or  correct  the 
judgment.  But,  irrespective  of  the  question  of  this  delay,  we  are  of 
the  opinion  that  there  is_jio  inherent  power  in  the  court  to  authorize 
an  amendment  of  a  judgment  in  the  manner  attempted  in  this  case, 
and  we  are  not  referred  to  any  statutory  authority  where  such  power 
is  conferred  upon  the  court. 

This  is  not  a  mere  voidable  judgment,  but  the  lack  of  jurisdiction 
to  enter  it  appears  upon  the  face  of  the  record  itself.  The  descrip- 
tion of  the  land  in  the  delinquent  list  was  so  uncertain  as  to  be  void, 
and  as  the  same  erroneous  description  appears  in  the  judgment  the 
whole  proceeding  was  void.  Su_ch  a  judgment  is  a  mere  nullity,  and 
confers  no  right  and  impairs  none.  It  is  not  like  an  irregular  judg- 
ment, which  may  be  corrected  by  courts  when  the  party  takes  the 
proper  legal  steps  to  have  it  amended.  The  description  means  nothing, 
describes  nothing,  and  amounts  to  nothing.  Valuable  property  rights 
ought  not  to  be  lost  or  gained  upon  such  descriptions.  The  defe.ct  is 
not  a  mere  irregularity,  but  jurisdictional;  and  the  judgment  rendered 
upon  it  cannot  be  construed  by  parol  evidence  to  mean  something  else 
than  what  appears  upon  its  face,  especially  where  such  evidence  at- 
tempts to  change  the  want  of  jurisdiction  to  jurisdiction.  ''An  im- 
perfect or  vague  description  in  a  tax  deed  cannot  be  aided  by  parol 
evidence."    Black,  Tax  Titles,  §  407. 

Even  if  this  were  not  so,  a  sale  was  made  of  the  imperfectly  de- 
scribed premises  on  the  17th  day  of  September,  1883,  which  sale  was 
based  upon  the  judgment  as  it  stood  at  the  time  of  its  rendition.  If 
the  judgment  was  void,  the  sale  made  under  it  was  void.  An  amend- 
ment of  the  judgment  would  not,  of  itself,  give  validity  to  the  sale. 
It  was  held  by  this  court  in  Tidd  v.  Rines,  26  Minn.  201,  2  N.  W. 
497,  that  sales  already  had  under  such  judgment  could  not  be  affected 


584  TITLE    BY   OFFICIAL    GRANT 

by  amendment  of  the  judgment.  And  Black  on  Tax  Titles  (section 
409)  uses  the  language,  "A  tax  title  is  purely  technical,  as  distinguish- 
ed from  a  meritorious  title,  and  depends  for  its  validity  on  a  strict 
compliance  with  the  statute." 

The  other  points  argued  by  counsel  need  not  be  discussed  here,  for 
they  are  not  necessary  to  the  disposition  of  the  case.  Both  the  order 
denying  a  motion  for  a  new  trial  and  the  order  correcting  the  tax 
judgment  are  reversed. 

GiLFiLLAN,  C.  J.,  absent  on  account  of  sickness,  took  no  part. 


II.  Eminent  Domain  • 


LEHIGH  VALLEY  R.  CO.  v.  McEARLAN. 
(Court  of  Errors  and  Appeals  of  New  Jersey,  ISSl.    43  N.  J.  Law,  605.) 

On  error  to  the  Supreme  Court. 

DupuE,  J.''  The  defendant  is  the  lessee  of  the  Morris  Canal  & 
Banking  Company.  In  1871  the  property,  works  and  franchises  of 
the  latter  company  were  granted  to  the  defendant  by  a  perpetual 
lease,  under  the  authority  of  an  act  of  the  legislature.  Pamph.  L. 
1871,  p.  444. 

The  lessor  was  incorporated  in  1824,  for  the  purpose  of  construct- 
ing a  canal  to  unite  the  river  Delaware,  near  Easton,  with  the  tide 
waters  of  the  Passaic.  Pamph.  L.  1824,  p.  158.  The  canal  was  con- 
structed from  the  Delaware  to  the  Passaic  about  1830.  In  1845  it  was 
enlarged  throughout  its  entire  length,  to  provide  for  navigation  with 
boats  of  greater  capacity.  In  1857  the  company  renewed  the  timbers 
in  its  dam  across  the  Rockaway  river,  and  placed  new  flash  boards 
upon  it.  In  1875  the  flash  boards  were  replaced  by  timbers  firmly 
spiked  on  the  top  of  the  dam,  and  made  part  of  its  permanent  struc-^ 
ture. 

The  plaintiff  is  the  owner  of  a  mill  situate  on  the  Rockaway  river, 
above  the  site  of  the  dam.  He  complains  of  an  injury  to  his  mill 
by  back  water  cast  back  upon  it  by  means  of  the  dam.  The  dam- 
ages claimed  are  such  as  accrued  between  the  30th  of  December,  1876, 
and  the  22d  of  September,  1877.  As  his  declaration  was  originally 
framed,  the  theory  of  his  action  was  that  the  dam  at  its  increased 
height  was  an  unlawful  structure.  At  the  trial  the  declaration  was  so 
amended  as  to  present  a  claim  for  compensation  for  the  damages  sus- 
tained by  the  plaintiff  between  the  days  named,  conceding  that  the 
canal  company  by  its  charter  had  power  to  take,  and  appropriate  to 

8  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  251. 
*  Part  of  the  opinion  is  omitted. 


EMINENT   DOMAIN  585 

its  use,  lands  and  water,  without  compensation  first  made,  and  that 
therefore  the  dam  was  not,  in  itself,  an  unlawful  structure. 

By  its  act  of  incorporation  the  canal  company  was  authorized  to 
enter  upon  and  take  possession  of  and  use  such  lands,  waters  and 
streams  as  might  be  necessary  for  its  canal,  without  compensation  first 
made.  Entry  upon  and  the  appropriation  of  private  property  to  its 
use  by  the  company  is  not  a  trespass.  Ejectment  will  not  He  to  oust 
the  company  from  lands  on  which  its  canal  is  constructed,  nor  are  its 
works  liable  to  abatement  as  a  nuisance  to  the  water-rights  of  others, 
though  compensation  has  not  been  made  to  the  owners  of  lands  or 
water-rights  taken  or  injured  by  the  company  in  the  construction  or 
operation  of  its  canal.  This  construction  of  the  company's  charter  is 
too  firmly  established  to  be  now  called  in  question.  Kough  v.  Darcey,. 
11  N.  J.  Law,  237;  Den  v.  Morris  Canal,  24  N.  J.  Law,  587;  Lehigh 
Valley  R.  R.  Co.  v.  McFarlan,  31  N.  J.  Eq.  706.  In  the  case  last  cited, 
which  was  between  the  parties  to  this  suit,  and  related  to  the  dam  as 
now  constructed,  this  court  decreed  that  this  defendant  had  and  still 
has  the  right,  under  the  charter  of  the  canal  company,  to  erect  and 
maintain  the  flash  boards,  the  subject  of  complaint  in  this  suit.  The 
lawfulness  of  the  dam  as  constructed  is  res  adjudicata  by  the  decree 
in  the  last-mentioned  suit. 

In  this  court,  upon  the  argument  of  this  case  for  the  first  time  in 
the  several  litigations  between  these  parties,  the  contention  has  been 
made  that  the  power  to  take  and  appropriate  lands  and  waters  to  the 
use  of  the  company  expired  in  1839,  under  the  limitation  in  section  23 
of  the  canal  company's  charter.  At  this  stage  of  the  controversy  be- 
tween these  parties  it  is  not  permissible  to  raise  that  question.  The 
rights  of  the  parties  in  that  respect  have  been  fixed  by  the  decree 
above  referred  to. 

While  the  right  of  the  canal  company  to  enter  upon  and  occupy 
lands  necessary  to  construct  its  canal,  and  to  appropriate  waters  nec- 
essary for  the  erection  and  use  of  its  canal  for  the  purposes  of  navi- 
gation, without  compensation  first  made,  is  settled  by  the  cases  cited, 
it  is  equally  well  settled  that  the  owner  of  lands  taken,  or  whose  water- 
rights  are  injured,  is  entitled  to  compensation  for  the  damages  sus- 
tained. The  same  section  which  confers  the  right  to  take  possession 
of  and  use  such  lands  and  waters  expressly  declares  that  such  pos- 
session and  use  shall  be  subject  to  compensation  to  be  made  therefor 
as  is  in  the  act  directed.  The  twentieth  section  enacts  that  nothing 
in  the  act  shall  be  taken  to  impair  the  right  of  any  person  to  an  ac- 
tion against  the  said  company  for  damages  to  his  or  her  water-rights, 
lands,  tenements  or  hereditaments  by  the  erection  of  said  canal;  and 
bx  the  twenty-seventh  section  it  is  provided  that  the  twentieth  section 
shall  be  so  construed  as  to  extend  to  damages  sustained  not  only  by 
the  erection  of  the  canal  in  the  first  instance,  but  also  by  the  subse- 
quent operations  of  the  company  from  time  to  time,  as  the  same  may 
arise.     Liberal  as  the  incorporating  act  is  to  the  promoters  of  this 


586  TITLE    BY   OFFICIAL    GRANT 

scheme  of  public  improvement,  its  purpose  was  to  secure  compensa- 
tion to  the  owners  of  lands  and  water-rights  whose  property  was  ap- 
plied to  the  public  use.  All  the  cases  cited  recognize  the  right  of  per- 
sons injured  to  compensation  for  the  injuries  sustained. 

The  contention  of  counsel  is  with  respect  to  the  mode  by  which 
the  owner  of  lands  or  water-rights  shall  seek  his  remedy.  The  de- 
lendant  contends  that  upon  the  appropriation  by  the  company  of 
lands  or  waters  to  its  use  the  right  of  the  owner  is  to  sue  for  and 
recover  in  one  suit — once  for  all — the  entire  value  of  the  lands  taken 
or  water-rights  appropriated.  The  contention  of  the  plaintiff's  counsel 
is,  that  the  occupation  of  lands  or  the  user  of  waters  without  compen- 
sation having  been  made,  is  a  continuing  injury,  for  which  successive 
actions  may  be  brought,  to  recover  the  damages  as  they  accrue  from 
time  to  time. 

The  case,  in  the  propriety  of  this  suit,  and  in  the  form  of  this  ac- 
tion and  the  pleadings,  will  turn  upon  the  inquiry  as  to  which  of  the 
foregoing  propositions  is  sound.  If  the  plaintiff's  water  rights  were 
taken  before  the  defendant's  lease  was  made,  and  the  right  of  the 
owner  to  redress  by  the  charter  is  consummated  and  concluded  when 
the  taking  is  effected,  then  the  plaintiff's  remedy  is  by  action  against 
the  canal  company,  by  whose  act  the  plaintiff  was  deprived  of  his  prop- 
erty, and  not  against  its  lessee. 

As  early  as  1830,  it  was  held  by  Chief  Justice  Ewing,  in  Kough  v. 
Darcey,  11  N.  J.  Law,  284,  that  the  charter  empowered  the  company 
to  enter  upon  and  take  possession  of  and  use  lands  and  water-rights 
necessary  for  its  canal,  without  compensation  first  made,  and  with- 
out becoming  a  tort-feasor  thereby,  subject  to  the  owner's  right  to 
recover  compensation  for  his  injury,  and  to  resort  to  legal  proceeding 
to  obtain  recompense  for  damages  to  his  lands,  tenements,  heredita- 
ments and  water  rights,  by  the  erection  of  the  canal. 

This  construction  was  adopted  and  made  the  basis  of  decision  in 
Den  V.  Morris  Canal,  24  N.  J.  Law,  587.  That  case  was  decided  ex- 
pressly on  the  ground  that  the  possession  of  lands  taken  by  the  com- 
pany for  its  canal  was  not  unlawful.  Mr.  Justice  Elmer,  in  delivering 
the  opinion  of  the  court,  quotes  from  the  opinion  of  Chief  Justice 
Ewing  in  Kough  v.  Darcey,  and  adopts  his  reasoning.  He  says : 
"Chief  Justice  Ewing,  delivering  the  opinion  of  the  court,  remarks 
that  this  section  (section  20)  embraces  all  persons  who  may  sustain 
injury,  by  actual  occupation  or  otherwise,  and  covers  the  same  extent 
of  damages,  right  and  estate  which  are  provided  for,  and  which  may 
be  satisfied  by  or  vested  in  the  company,  by  virtue  of  the  previous  sec- 
tions ;  it  is  therefore  one  of  the  modes  of  compensation  directed  by 
the  act.  Authority  being  thus  given  to  the  company  to  take  possession 
of  and  use  the  requisite  land,  subject  to  being  sued  by  the  proprie- 
tor for  such  damages  as  he  thereby  sustained,  including  the  taking 
from  him  his  estate  therein,  unless  he  thought  proper  to  agree  upon 
the  proper  compensation  or  to  await  an  assessment,  it  follows  as  a 


EMINENT    DOMAIN 


587 


necessary  construction  that  the  taking  and  using  was  meant  to  be 
absolute,  and  not  subject  to  be  afterwards  disturbed;  the  taking  and 
using  subjected  the  company  to  be  called  upon  for  compensation,  at 
the  option  of  the  proprietor,  to  the  whole  extent  of  the  injury  done 
to  his  possession  and  estate,  by  means  of  a  suit  at  law." 

Itjs;  .evident  that  the  legislative  purpose,  as  expressed  in  the  twen- 
tieth and  twenty-seventh  sections,  was  to  secure  to  persons  injured 
in  their  property-rights,  a  remedy  in  conformity  with  the  ordinary 
rules  regulating  actions  at  law,  according  to  the  nature  and  extent 
of  the  injury  sustained.  Ifjthe  injury  be  one  that  in  its  nature  is  tem- 
porary and  recurrent,  such  as  might  arise  from  the  company's  negli- 
gence in  allowing  its  works  to  be  out  of  repair,  or  from  the  temporary 
diversion  or  throwing  back  of  water,  arising  from  the  irregular  sup- 
ply of  water  from  extraneous  sources,  or  the  management  of  the 
gates  of  the  canal  locks,  or  from  the  occasional  use  of  flash  boards  as 
a  temporary  expedient,  successive  actions  for  the  damages  sustained 
from  time  to  time  may,  under  the  circumstances,  be  the  appropriate 
remedy. 

But  when  the  company  has  effected  a  complete  appropriation  of 
property  by  the  location  of  its  canal  on  lands,  or  the  appropriation  of 
water-rights  to  its  use  by  the  construction  of  works  designed  to  ef- 
fect a  constant  and  continuous  diversion  or  flooding  back  of  waters. 
such  lands  and  water-rights  are  taken,  and  the  damages  consist  in  the 
entire  value  of  the  property  taken.  If,  as  has  been  conclusively  ad- 
judged, the  company  may  take  and  appropriate  property  to  its  use 
without  compensation  first  made,  and  its  possession  and  use  thereof  be 
therefore  lawful,  there  is  no  principle  of  law  regulating  actions  and 
pleadings  that  will  sustain  an  action,  the  very  foundation  of  which  is, 
that  the  possession  or  use  of  property  without  such  compensation  be- 
ing made  is  a  legal  wrong.  The  twenty-seventh  section  gives  no  coun- 
tenance to  such  an  action.  It  extends  the  right  of  action,  reserved 
by  the  twentieth  section,  to  damages  sustained  not  only  by  the  erec- 
tion of  the  canal  in  the  first  instance,  but  also  by  the  subsequent  opera- 
tions of  the  company  from  time  to  time  as  the  same  may  arise.  The__ 
damiages  are  sustained  by  the  owner  when  his  property  is  appropriated 
by  the  company  to  its  use  as  a  finality,  and  do  not  arise  from  time 
"to  time,  from  the  occupation  or  use  of  it  by  the  company. 

This  construction  is  in  harmony  with  the  course  of  decision  on  this 
subject  in  the  courts  of  this  state.  It  has  been  uniformly  held  that, 
in  proceedings  to  condemn,  the  value  of  the  lands  and  damages  are  to 
be  appraised  as  of  the  time  when  they  were  taken,  though  the  title 
may  not  pass  until  the  appraised  value  is  paid.  In  North  Hudson  R. 
R.  Co.  v.  Booraem,  28  N.  J.  Eq.  450,  it  was  held  by  this  court  that, 
where  a  railroad  corporation  having  power  to  condemn,  entered  into 
possession  and  constructed  its  road  upon  the  land,  in  proceedings  sub- 
sequently prosecuted  to  condemn,  the  measure  of  compensation  was 
the  value  of  the  land  and  damages  at  the  time  the  entry  was  made,  and 


588  TITLE    BY   OFFICIAL    GRANT 

interest  from  that  time.  In  Trenton  Water  Power  Co.  v.  Chambers, 
reported  in  9  N.  J.  Eq.  471,  and  13  N.  J.  Eq.  199,  the  company  en- 
tered into  possession  of  lands  by  consent  of  the  owners  and  construct- 
ed its  canal  upon  them,  and  the  order  of  the  Chancellor  was  that  the 
master  should  make  an  estimate  and  appraisement  of  their  value  and 
the  damages  as  of  the  time  when  possession  was  taken.  The  rule  is 
general  that  the  assessment  should  be  of  the  value  at  the  time  of  the 
taking,  although  the  statute  provides  that  title  should  not  pass  until 
compensation  is  paid.     Mills  on  Eminent  Domain,  §§  174,  176. 

The  canal  company  is,  by  its  charter,  admitted  into  the  possession 
of  property  required  for  its  use,  by  the  sovereign  power  of  the  legis- 
lature. If,  after  possession  taken,  proceedings  are  instituted  for  an 
appraisement  thereof,  pursuant  to  the  sixth  section,  the  value  of  the 
property,  when  it  was  taken  and  appropriated  to  the  company's  use, 
and  interest,  would  be  the  measure  of  compensation  to  be  awarded  by 
the  commissioners.  It  is  clear  that  the  same  measure  of  compensa- 
tion will  be  recoverable  in  an  action  by  the  owner  under  the  twentieth 
section ;  for,  the  possession  and  continued  use  of  the  property  being 
made  lawful,  the  damages  to  the  owner's  land,  tenements,  heredita- 
ments or  water-rights,  which  he  sustained  by  the  erection  of  the 
canal,  would  be  such  as  resulted  from  the  complete  appropriation  of 
his  property  to  the  company's  use,  and  the  entire  deprivation  of  all 
beneficial  interest  therein,  and  be  equivalent  to  the  whole  value  of  the 
property  at  the  time  the  owner  was  deprived  of  it  by  the  company's 
entry  upon  it. 

Any  other  view  of  the  rights  of  the  company  and  of  the  owners  of 
lands  and  water-rights  than  that  the  injury  is  completed  when  the 
property  has  been  taken  and  appropriated  by  the  company  to  its  use, 
and  that  the  damages  recoverable  by  the  owner  in  his  action  will  be 
the  whole  value  of  the  property  he  has  lost  by  the  company's  act,  would 
work  great  injustice  to  the  owners  of  property  required  by  the  com- 
pany for  its  use.  The  owner  to  whom  compensation  has  not  been 
made  cannot  oust  the  company  from  the  premises  by  ejectment.  He 
cannot  set  on  foot  proceedings  for  the  estimation  of  his  damages  by 
commissioners,  under  the  sixth  section  of  the  company's  charter,  nor 
can  he  treat  its  possession  and  use  as  tortious,  so  as  to  visit  upon  the 
company  punitive  damages,  by  means  of  which  to  force  the  company  to 
institute  and  carry  into  effect  proceedings  for  the  appraisement  by 
commissioners  of  the  value  of  his  lands  or  water-rights.  If  he  can- 
not recover  the  entire  damages  he  has  sustained  in  one  action,  and  is 
remitted  to  repeated  actions  for  damages  pro  tanto  for  the  occupa- 
tion or  use  of  his  property,  the  charter  has  placed  him  in  the  situation 
of  permanently  investing  his  property  in  the  canal,  from  which  the 
income  derived  will  be  the  proceeds  of  repeated  suits  for  damages,  in- 
stead of  enabling  him  to  recover  at  once  full  compensation  for  the 
injury  sustained.  If  the  property  should  be  land  on  which  the  canal 
is  located,  or  consist  of  an  improved  mill-site  rendered  valueless  by 


EMINENT   DOMAIN  589 

the  diversion  or  throwing  back  of  water,  it  is  manifest  that  successive 
actions  for  use  and  occupation  or  for  the  loss  and  inconvenience  suf- 
fered from  the  deprivation  of  the  beneficial  use  and  enjoyment  of  his 
property,  besides  being  vexatious,  would  afford  the  owner  no  adequate 
recompense  for  his  injuries.  He  could  not  improve  or  repair  the  im- 
provements which  gave  value  to  his  property  when  it  was  interfered 
with,  for  reparation  and  improvement,  if  practicable,  would  be  a  use- 
less expenditure  of  money  for  which  he  could  make  no  claim  to  be 
reimbursed;  nor  could  he  suffer  his  property  to  fall  into  decay,  for 
to  suffer  it  to  fall  into  decay,  would  deprive  him  of  the  ability  to 
obtain  compensation  as  he  sought  it  from  time  to  time,  on  the  basis 
of  the  improvements  in  which  its  value  intrinsically  consisted,  when  his 
property  was  invaded  by  the  company. 

In  all  cases  where  property,  whether  it  be  lands  or  water-rights, 
has  been  permanently  appropriated  by  the  company  to  its  use,  the 
damages  sustained  are  a  unit,  and  are  recoverable  as  such,  and  not  by 
piecemeal.  The  injury  is  consummated  when  the  company  has  per- 
manently appropriated  the  owner's  lands  or  water-rights  to  its  use; 
and,  as  was  said  by  Chief  Justice  Ewing,  in  Kough  v.  Darcey,  "the 
right  of  action  for  such  damages  is  not  by  anything  in  the  act  im- 
paired, not  weakened,  not  lessened,  not  even  postponed  to  an  indefinite 
period,  for  so  to  postpone  is  manifestly  to  impair." 

It  is  clear,  I  think,  that  the  action  reserved  by  the  charter,  to  the 
owner  for  damages  to  his  or  her  water-rights,  lands,  tenements  or 
hereditaments,  is  the  means  provided  for  him  to  obtain  an  appraise- 
ment and  recovery  of  his  damages,  in  case  the  company  does  not  pro- 
ceed to  obtain  an  appraisement  of  them  by  commissioners.  It  will 
follow,  therefore,  that  the  damages  recoverable  in  such  action  will  be 
the  same  compensation  which  is  determinable  by  the  award  of  commis- 
sioners— full  compensation  for  the  injury  done  by  the  appropriation 
of  the  owner's  property  to  the  company's  use ;  for  the  property  being 
taken  when  it  is  appropriated  by  the  company  to  its  use,  the  extend 
of  the  injury  will  not  depend  upon  the  method  adopted  to  determine 
the  compensation  due  the  owner  of  it.  It  will  also  follow  from  the 
substitution  of  an  action  by  the  owner  for  proceedings  to  appraise  by 
commissioners,  that  the  owner's  action  for  compensation  will  not  be 
barred  by  the  statute  of  limitations,  as  ordinary  actions  of  trespass 
or  for  debts  are  barred.  He  may  proceed  to  have  his  damages  ap- 
praised by  action  at  any  time  before  a  right  or  title  to  the  property 
has  been  acquired  by  adverse  user  or  possession.  Nor  will  his  claim 
for  damages  be  subject  to  a  presumption  of  payment,  such  as  is  some- 
times applied  to  debts,  for  until  his  damages  are  ascertained  by  action 
or  by  the  award  of  commissioners,  there  is  no  debt  to  which  a  pre- 
sumption of  payment  can  apply.     *     *     * 

In  the  present  case,  it  is  a  fact  indisputable  that  there  was  a  taking 
either  in  1845,  in  1857  or  in  1875.  The  pleadings  in  the  plaintiff's 
action  are  not  adapted  to  such  a  state  of  the  case,  and  the  defendant 


590  TITLE    BY   OFFICIAL    GRANT 

is  under  no  obligation  to  submit  to  the  vexation  of  successive  suits 
upon  a  cause  of  action  which  is  an  entirety,  single  and  inadvisible. 
Furthermore,  if  the  taking  was  in  1845,  or  in  1857,  or  at  any  time 
before  the  defendant's  lease  was  made  in  1871,  the  plaintiff  has  mis- 
conceived his  remedy.  His  action  should  then  have  been  against  the 
canal  company,  by  whom  his  property  was  taken  and  the  plaintiff's 
injury  was  done.  It  should  have  been  left  to  the  jury  to  determine 
whether  the  taking  was  before  or  after  the  defendant  became  the 
lessee  of  the  canal  and  its  works.     *     ♦     * 


EESTRAIXTS  AND    DISABILITIES    OF   TRANSFERS  591 


RESTRAINTS  AND  DISABILITIES  OF  TRANSFERS 
I.  Restraints  Imposed  in  Favor  of  Creditors  ^ 


TODD  V.  NELSON. 
(Court  of  Appeals  of  New  York,  1SS8.    109  N.  Y.  316,  16  N.  E.  360.) 

Appeal  from  general  term,  supreme  court.  Second  department. 

Action  by  Hester  J.  Todd  and  Mary  Ophelia  Green,  as  administra- 
tors, etc.,  of  Harvey  N,  Todd,  a  mortgagee  of  land,  to  set  aside  as 
fraudulent  a  deed^  made  prior  to  the  mortgage,  to  the  defendant 
Isaac  Nelson,  impleaded  with  others.  Judgment  was  entered  for 
plaintiff,  who  appeals  form  an  order  of  the  general  term  granting  a 
new  trial. 

Peckham,  J.^  This  action  was  brought  by  the  plaintiff  to  set  aside 
and  have  declared  void  a  deed  said  to  have  been  executed  by  one 
Emma  D.  Owen  to  Isaac  Nelson  and  Mary  Ann  Nelson,  her  father 
and  mother.  The  deed  conveyed  certain  premises  in  the  county  of 
Westchester  belonging  to  Mrs.  Owen,  and  it  was  recorded  in  the 
clerk's  office  of  that  county  within  a  few  days  after  it  was  executed, 
which  was  on  the  20th  of  December,  1862.  In  1867,  the  grantor  in 
the  deed,  who,  with  her  husband,  had  continued  to  occupy  the  prem- 
ises, executed  a  mortgage  thereon  to  one  Todd,  for  the  purpose  of 
securing  the  repayment  of  $4,000.  Subsequently  another  mortgage 
was  executed  by  her  to  the  same  mortgagee  for  the  purpose  of  se- 
curing the  sum  of  $2,000  additional,  made  up  in  part  of  the  interest 
due  on  the  $4,000  mortgage  and  the  balance  in  cash  advanced.  Sub- 
sequently an  action  was  commenced  to  foreclose  both  mortgages,  which 
proceeded  to  judgment,  and  a  decree  of  foreclosure  was  rendered,  and 
the  premises  were  sold  under  that  decree,  and  bid  in  by  the  mortgagee. 
No  judgment  for  deficiency  was  ever  entered  up  against  the  mort- 
gagor. The  mortgagee,  having  received  the  referee's  deed,  upon  seek- 
ing to  obtain  possession  was  confronted  with  the  deed  of  the  prem- 
ises, executed  in  1862,  to  said  Nelson  and  his  wife;  and  he  found 
defendant  Isaac  Nelson  (his  wife  having  died)  in  possession,  claiming 
to  own  the  premises  by  virtue  of  said  deed.  This  action  was  tried 
before  a  judge  without  a  jury,  and  resulted  in  a  judgment  for  the 
plaintiff,  setting  aside  the  deed  from  Mrs.  Owen  to  her  father  and 
mother,  and  adjudging  the  title  to  have  been  in  her  at  the  time  of  the 
execution  by  her  of  the  mortgages  above  mentioned,  and  adjudging 
that  the  plaintiff  was  entitled  to  the  immediate  possession  of  the  said 

1  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  254. 

2  Part  of  tlie  opinion  is  omitted. 


592  RESTRAINTS  AND    DISABILITIES    OF    TRANSFERS 

premises.  An  appeal  from  that  judgment  was  taken  to  the  general 
term,  where  it  was  reversed,  and  a  new  trial  granted ;  but  the  order 
granting  such  new  trial  did  not  state  that  the  judgment  was  reversed 
on  questions  of  fact. 

The  first  question  which  arises  here  is  upon  the  finding  of  fact  made 
by  the  trial  judge  that  the  deed  from  Mrs.  Owen  to  her  father  and 
mother  was  never  delivered  by  Mrs.  Owen  to  them,  or  either  of  them, 
nor  did  she  ever  authorize  any  other  person  to  deliver  such  deed  to 
said  grantees,  or  either  of  them.     *     *     * 

Upon  a  careful  review  of  this  evidence,  and  of  the  pleadings  and 
the  course  of  the  trial,  as  manifested  in  the  record,  we  are  of  opinion 
that  the  finding  of  the  learned  judge  that  there  was  no  delivery  of 
this  deed  is  not  supported  by  any  evidence  in  the  case,  and  is  against 
the  existence  of  a  fact  which  was  assumed  upon  the  trial,  and  charged 
in  the  complaint.  By  the  complaint  itself,  taking  it  altogether,  it  is 
perfectly  apparent  that  it  proceeded  upon  the  ground  of  the  execution 
and  delivery  of  this  deed.     *     *     * 

The  finding  of  non-delivery  being  thus  an  error  of  law,  the  general 
term  was  right  in  granting  a  new  trial ;  and  we  must  affirm  the  order, 
unless  it  shall  appear  that  upon  the  other  findings  in  the  case,  assum- 
ing there  was  a  delivery  of  the  deed,  the  judgment  of  the  trial  court 
was  necessarily  correct.  This  makes  it  necessary  to  look  still  further 
into  the  record ;  and  the  first  question  that  meets  us  is  as  to  the  finding 
of  the  trial  court  upon  the  question  of  fraud.  If  there  were  a  de- 
livery of  the  deed,  and  no  fraud  in  its  purpose,  of  course  that  is  an 
end  of  the  case,  and  it  is  not  necessary  to  inquire  further  as  to  whether 
the  action  could  be  maintained  if  there  were  a  delivery  of  the  deed, 
and  a  fraudulnt  purpose  accompanying  it  on  the  part  of  the  grantor. 
The  court  found  that  prior  to  September,  1862,  it  was  known  to  her 
parents  that  their  daughter,  Mrs.  Owen,  then  Mrs.  \'an  Vernol,  was 
about  to  marry,  and  that  in  such  event  she  intended  to  occupy  and 
carry  on  the  farm  she  owned,  through  the  agency  of  her  intended 
husband,  John  Owen.  It  was  further  found  that  the  parents  and 
daughter,  believing  the  marriage  was  hazardous  and  that  indebtedness 
would  arise,  and  losses  be  sustained,  with  a  view  to  entering  into 
the  marriage,  and  engaging  in  the  farming  business,  and  to  save  the 
farm  to  Mrs.  Owen,  and  protect  the  same  from  her  future  creditors, 
agreed  that  the  daughter  should  convey  the  farm  to  her  parents,  and 
they  promised  to  hold  the  title  to  the  same  in  trust  for  her,  and  she 
should  continue  in  possession  of  the  premises,  and  enjoy  the  pro- 
ceeds and  income  thereof;  and  in  pursuance  of  such  agreement  the 
deed  was  executed ;  and  soon  thereafter  she  went  into  the  occupation 
of  the  farm  with  her  husband,  engaged  in  the  business  of  farming, 
and  sustained  heavy  losses  therein,  and  became  totally  insolvent.  The 
court  further  found  that  the  deed  was  colorable  only,  and  made  with 
intent  to  defraud  the  creditors  of  the  grantor,  and  with   intent  to 


RESTRAINTS  IMPOSED  IN  FAVOR   OF  CREDITORS  593 

defraud  the  subsequent  mortgagee,  the  plaintiff's  intestate.     These 
findings  were  duly  excepted  to  by  defendant's  counsel. 

Of  course,  the  same  rule  holds  in  this  instance  as  was  stated  in  re- 
gard to  the  finding  made  by  the  trial  court  that  there  was  no  delivery 
of  the  deed,  and,  if  there  be  any  evidence  to  sustain  these  findings 
of  fraud,  we  are  concluded  by  them.  A  careful  examination  of  the 
whole  evidence  in  the  case  satisfies  us  that  there  is  none  upon  which 
the  finding  of  the  learned  trial  judge  can  be  based.  The  court  found 
(and  the  evidence  upon  that  point  fully  sustains  the  finding)  that  at 
the  time  when  this  deed  was  delivered  the  grantor  owed  no  debts 
whatever ;  and  she  had,  in  addition  to  the  farm  in  question,  some  per- 
sonal property  and  money,  which  together  amounted  in  value  to  $19,- 
000;  and  the  deed  was  placed  on  record  within  four  days  of  its  execu- 
tion. The  theory  upon  which  deeds  conveying  the  property  of  an  in- 
dividual to  some  third  party  have  been  set  aside  as  fraudulent  in 
regard  to  subsequent  creditors  of  the  grantor  has  been  that  he  has 
made  a  secret  conveyance  of  his  property  while  remaining  in  the 
possession  and  seeming  ownership  thereof,  and  has  obtained  credit 
thereby,  while  embarking  in  some  hazardous  business  requiring  such 
credit,  or  the  debts  which  he  has  incurred  were  incurred  soon  after 
the  conveyance,  thus  making  the  fraudulent  intent  a  natural,  and  al- 
most a  necessary,  inference;  and  in  this  way  he  has  been  enabled  to 
obtain  the  property  of  others,  who  were  relying  upon  an  appearance 
which  was  wholly  delusive.  Such  are  the  cases  cited  by  the  learned 
counsel  for  the  appellants.  But  here  the  grantor  was  not  about  to 
engage  in  business,  within  the  meaning  of  that  term  as  used  in  the 
cases.  She  was  simply  going  to  live  on  the  farm  with  her  husband, 
and  presumably  off  the  products  thereof.  She  had  $19,000  in  personal 
property,  and  the  farm  was  then  worth  about  $6,000.  She  was  wholly 
free  from  debt.  The  deed  was  placed  on  record  at  once.  It  was 
four  years  and  four  months  thereafter  before  the  first  of  the  mort- 
gages was  executed  to  plaintiff's  intestate,  and  eight  years  and  four 
months  before  the  second  was  executed.  Under  such  circumstances, 
we  think  it  is  too  much  to  say  that  there  was  any  evidence  at  the 
time  she  executed  the  deed  that  the  grantor  meant  to  defraud  cred- 
itors; on  the  contrary,  no  such  inference  can  be  drawn.  The  parties 
evidently  (or  at  least  the  mother)  were  fearful  in  regard  to  the  mar- 
riage, and  decided  that  at  least  some  part  of  the  property  which  she 
possessed  should  be  saved  to  the  grantor  from  the  husband's  possible 
future  misfortunes.  That  years  after  the  execution  of  the  deed,  which 
was  on  record,  the  grantor,  at  the  request  of  her  husband,  should 
mortgage  the  farm,  and  should  make  an  affidavit  that  she  was  the 
owner  thereof,  however  it  may  show  an  intent  to  defraud  the  mort- 
gagee at  that  time,  does  not,  we  think,  show  that  the  purpose  of  the 
deed,  executed  more  than  four  years  prior  thereto,  at  a  time  when 

Bued.Cas.Real  Peop. — ^38 


594  RESTRAINTS  AND    DISABILITIES   OP   TRANSFERS 

^he^  was  largely  solvent,  was  to  defraud  this  mortgagee,  or  any  subse- 
quent creditors,  not  one  of  whom  was  shown  to  exist  earlier  than 
the  above-stated  time  of  more  than  four  years  from  the  execution 
of  the  deed.  She  swears  distinctly  that  her  purpose  was  to  give  the 
farm  freely  and  wholly  to  her  parents,  and  the  survivor,  and  she  may 
have  felt  full  confidence  in  their  intention  to  treat  her  with  kind- 
ness. We  have  not  gone  at  length  into  the  evidence.  On  the  con- 
trary, we  have  given  only  a  partial  review  of  it;  and  we  feel  con- 
vinced that  it  cannot  be  regarded  as  furnishing  any  support  for  the 
finding  of  fraud  as  made  by  the  trial  court. 

This  conclusion  renders  it  unnecessary  to  enter  upon  the  exam- 
ination of  any  further  question  in  the  case.  The  deed  being  delivered, 
and  there  being  no  fraudulent  purpose  which  caused  its  delivery,  the 
title  was  in  the  grantees  at  the  time  Mrs.  Owen  assumed  to  mortgage 
the  farm,  and  the  plaintiffs  cannot  maintain  this  action.  The  equities 
in  favor  of  the  plaintiffs  are  very  strong  indeed.  Their  intestate  ad- 
vanced his  money  believing  his  mortgage  was  a  lien  on  the  farm ; 
but  he  had  the  opportunity  at  all  times  before  loaning  any  money  to 
resort  to  the  record  in  the  clerk's  office,  and  the  least  attention  given 
thereto  would  have  led  to  the  discovery  of  this  deed.  He  saw  fit  to 
trust  to  the  declarations  of  Mrs.  Owen,  and  these  plaintiffs  must  sus- 
tain a  heavy  loss  in  consequence  thereof. 

The  order  of  the  general  term  granting  a  new  trial  must  be  af- 
firmed, and  judgment  absolute  rendered  against  the  plaintiffs,  in  ac- 
cordance with  their  stipulation,  with  costs.  All  concur,  except  Earl 
and  Gray,  ]].,  dissenting.^ 


II.  Restraints  Imposed  in  Creation  of  Estate  * 


HARKNESS  v.  LISLE. 

(Court  of  Appeals  of  Kentucky,  1909.    132  Ky.  767,  117  S.  W.  264.) 

Appeals  from  Circuit  Court,  Scott  County. 

"To  be  officially  reported." 

Action  by  James  L.  Lisle  and  another  against  Rufus  Lisle,  Jr., 
and  others.  From  the  judgment,  L.  V.  Harkness  appeals  against 
James  L.  Lisle  and  others;  James  L.  Lisle  and  others  appeal  against 
Rufus  Lisle,  Jr.,  and  others;  and  Rufus  Lisle,  Jr.,  and  others  appeal 
against  James  L.  Lisle  and  others.  Affirmed  on  first  and  third  ap- 
peals ;  reversed  on  second. 

3  And  see  Rouse  v.  Caton,  168  Mo.  288,  67  S.  W.  578,  90  Am.  St.  Rep.  456, 
reported  herein,  ante,  p.  108,  as  to  conveyances  fraudulent  against  subsequent 
attaching  creditors. 

*  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  256. 


RESTRAINTS    IMPOSED   IN    CREATION    OF    ESTATE  595 

Clay,  C.^  These  appeals  involve  the  construction  of  the  will  of 
._Rufus  Lisle,  a  prominent  farmer  and  breeder  of  thoroughbred  stock, 
who  died  a  resident  of  Fayette  county,  Ky.,  in  the  year  1891,  and  the 
validity  of  the  proceedings  of  the  Scott  circuit  court  decreeing  a  sale 
of  the  tract  of  land  devised  by  Rufus  Lisle  to  his  son,  James  L.  Lisle. 
The  appeals  will  therefore  be  considered  together. 

This  action  was  instituted  by  James  L.  Lisle  and  his  wife,  Pattie 
C.  Lisle,  against  their  only  living  children,  Rufus  Lisle,  Jr.,  and  Lil- 
lian Lisle,  infants  over  14  years  of  age,  and  their  statutory  guardian, 
Victor  Bradley,  and  John  H.  Payne  and  E.  P.  Halley,  Sr.,  trustees 
under  the  last  will  and  testament  of  Rufus  Lisle,  Sr.  The  petition 
charges  that  by  the  fifth  clause  of  the  will  of  Rufus  Lisle,  Sr.,  the 
testator  devised  to  James  L.  Lisle  a  fee-simple  title  to  the  250  acres 
of  land  known  as  the  "Duke  place,"  located  in  Scott  county,  Ky.,  and 
that  the  fifteenth  clause  of  said  will  was  an  unreasonable  restraint 
upon  the  fee  so  devised,  and  was  therefore  null  and  void.     *     *     * 

Clause  15  is  as  follows:  "Neither  of  my  children  nor  the  trustee 
herein  named  shall  sell,  convey  or  in  any  way  charge  or  incumber  the 
land  herein  devised,  for  any  purpose  whatever  during  the  lifetime  of 
any  of  my  said  children,"     *     *     * 

By  that  clause  the  testator's  children  and  their  trustees  are  prohib- 
ited from  selling,  conveying,  or  in  any  way  charging  or  incumbering 
the  land  devised,  for  any  purpose  whatever,  during  the  lifetime  of 
any  of  said  children. 

The  general  rule  of  law  applicable  to  restraints  on  alienation  may 
be  found  in  Littleton,  §  360,  and  is  as  follows:  "If  a  feoffment  be 
made  upon  this  condition,  that  the  feoffee  shall  inot  alien  the  land  to 
any,  this  condition  is  void,  because  when  a  man  is  enfeoffed  of  lands  or 
tenements  he  hath  power  to  alien  them  to  any  person  by  the  law. 
For  if  such  a  condition  be  good,  then  the  condition  should  oust  him 
of  all  power  which  the  law  gives  him,  which  should  be  against  rea- 
son ;  and  therefore  such  a  condition  is  void."  The  exception  to  this 
doctrine  may  be  found  in  Littleton,  §  361,  which  section  is  as  follows: 
"But  if  the  condition  be  such  that  the  feoffee  shall  not  alien  to  such 
a  one,  naming  his  name,  or  to  any  of  his  heirs,  or  of  the  issues  of 
such  a  one,  etc.,  or  the  like,  which  conditions  do  not  take  away  all 
power  of  alienation  from  the  feoffee,  etc.,  then  such  a  condition  is 
good." 

In  the  well-considered  case  of  Mandlebaum  v.  McDonell,  29  Mich. 
78,  18  Am.  Rep.  61,  the  court  said:  "Now,  neither  Littleton  nor  Coke, 
nor  any  of  the  annotators  of  Coke  upon  Littleton,  so  far  as  I  have 
been  able  to  discover,  has  mentioned  any  such  qualification  of  the 
general  rule  laid  own  by  Littleton  in  section  360,  nor  anywhere  in- 
timated that  such  a  condition  against  alienation  for  a  particular  time, 
or  for  a  reasonable  time,  or  for  any  time  whatever,  would  be  valid ; 

6  Part  of  tlie  opinion  is  omitted. 


596  RESTRAINTS  AND    DISABILITIES    OF   TRANSFERS 

and  the  same  may  be  said  of  the  other  approved  English  works  upon 
real  estate:  Blackstone's  Commentaries,  Sheppard's  Touchstone,  Ba- 
con's Abridgement,  Cruise's  Digest,  Comyns'  Digest,  and  all  other 
English  works  which  I  have  been  able  to  examine.  And  if  there  is 
any  English  decision  since  the  statute  quia  emptores,  where  the  point 
was  involved,  in  which  it  was  held  competent  for  a  feoffor,  grantor, 
or  devisor  of  a  vested  estate  in  fee  simple,  whether  in  remainder  or 
in  possession,  by  any  condition  or  restriction  in  the  instrument  creat- 
ing it,  to  suspend  all  power  of  the  feoffee,  grantee,  or  devisee,  other- 
wise competent,  to  sell  for  a  single  day,  I  have  not  been  able  to  find 
it;  and  the  able  counsel  for  the  defendants  whose  research  nothing 
of  this  kind  is  likely  to  escape,  seem  to  have  been  equally  unsuccess- 
ful. In  making  this  statement  I  do  not  overlook  Large's  Case,  2 
Leonard,  82,  and  3  Leonard,  182,  which  by  some  elementary  writers 
and  annotators,  and  in  some  dicta  by  judges,  and  perhaps  one  or  two 
decisions  in  this  country,  seems  to  have  been  understood  as  warrant- 
ing such  a  restriction,  and  upon  which  all  such  elementary  writers, 
annotators,  and  judges,  who  profess  to  rest  such  an  opinion  upon  any 
authority,  rely,  but  which  I  propose  presently  to  show  decides  no  such 
thing  as  to  any  vested  estate  of  any  kind." 

In  Am.  &  Eng.  Encyc.  of  Law,  vol.  24,  p.  867,  the  rule  is  thus 
stated :  "There  are  many  dicta,  as  well  as  a  few  direct  authorities, 
to  the  effect  that  restraints  on  alienation  for  a  limited  time  are  valid, 
but  in  a  number  of  cases  the  validity  of  such  restraints  has  been  said 
to  be  doubtful;  and  on  principle,  and  according  to  the  weight  of 
authority,  a  restriction,  whether  by  way  of  condition,  or  of  limita- 
tion over,  or  of  bare  prohibition  against  any  and  all  alienation,  al- 
though for  a  limited  time,  of  a  vested  estate  in  fee,  whether  in  pos- 
session or  remainder,  is  void.  In  the  case  of  a  contingent  remainder, 
however,  or  of  any  other  interest  not  vested,  a  restriction  upon  the 
power  of  alienation  to  last  as  long  as  the  interest  remains  contingent 
is  valid." 

As  an  inseparable  part  of  this  doctrine,  it  is  the  recognized  rule  of 
law  that  a  devise  over  of  an  estate  devised  in  fee  is  void,  and  this 
court  has  so  held  in  a  number  of  carefully  considered  cases.  Barth 
v.  Barth,  38  S.  W.  511,  18  Ky.  Law  Rep.  840;  Clay  v.  Chenault,  108 
Ky.  77,  55  S.  W.  729;  Ray  v.  Spears'  Ex'r,  64  S.  W.  413,  23  Ky. 
Law  Rep.  816;  Humphrey  v.  Potter,  70  S.  W.  1062,  24  Ky.  Law  Rep. 
1264;  Cralle  v.  Jackson,  81  S.  W.  669,  26  Ky.  Law  Rep.  417;  Becker 
v.  Roth  (decided  Jan.  29,  1909),  132  Ky.  429,  115  S.  W.  761.  But 
this  court  is  committed  to  the  doctrine  that  a  restraint  on  alienation 
for  a  reasonable  time  is  valid.  In  Stewart  v.  Brady,  3  Bush,  623 
the  restraint  upon  alienation  was  until  the  devisee  arrived  at  the  age 
~ii  35  years.  In  Stewart  v.  Barrow,  7  Bush,  368,  the  restraint  was 
for  a  specified  length  of  time.  In  Kean's  Guardian  v.  Kean,  18  S. 
W.  1032,  19  S.  W.  184,  13  Ky.  Law  Rep.  956,  alienation  was  re- 


RESTRAINTS   IMPOSED   IN   CREATION    OF    ESTATE  597 

Strained  until  the  devisee  reached  the  age  of  28.  In  Wallace  v.  Smith, 
113  Ky.  263,  68  S.  W.  131,  the  devisee  was  prohibited  from  selling 
the  property  until  he  reached  the  age  of  35.  In  Johnson  v.  Dumeyer, 
66  S.  W.  1025,  23  Ky.  Law  Rep.  2243,  the  devisee,  a  daughter,  was 
restrained  from  disposing  of  the  property  for  a  period  of  20  years 
after  the  death  of  the  testator.  In  Morton's  Guardian  v.  Morton, 
120  Ky.  251,  85  S.  W.  1188,  the  restraint  was  during  the  lives  of  the 
joint  life  tenants.  In  Lawson  v.  Lightfoot,  84  S.  W.  '739,  27  Ky. 
Law  Rep.  217,  it  was  provided  that  the  remainder  interest  should  not 
be  sold  during  the  life  of  the  tenant  for  life.  In  all  of  these  cases 
it  was  held  that  the  restraints  upon  alienation  were  for  a  reasonable 
time,  and  therefore  valid. 

In  discussing  the  question,  this  court,  in  the  case  last  cited,  speak- 
ing through  Judge  Settle,  said:  "It  must  be  conceded  that  the  great 
weight  of  authority  outside  of  Kentucky  is  to  the  effect  that,  where 
the  fee-simple  title  to  real  estate  passes  under  a  deed  or  will,  any  re- 
straint attempted  to  be  imposed  by  the  instrument  upon  its  alienation 
by  the  grantee,  or  devisee,  is  to  be  treated  as  void,  and  such  is,  clearly 
the  rule  announced  by  Mr.  Gray  in  his  excellent  work  on  Restraints 
of  Alienation ;  but  the  contrary  view  has  been  adopted  by  this  court 
in  repeated  decisions,  beginning  with  Stewart  v.  Brady,  3  Bush,  623, 
and  ending  with  Wallace  v.  Smith,  113  Ky.  263,  68  S.  W.  131.  Stew- 
art V.  Barrow,  7  Bush,  368;  Rice  v.  Hall,  42  S.  W.  99,  19  Ky.  Law 
Rep.  814;  Kean's  Guardian  v.  Kean,  18  S.  W.  1032,  19  S.  W.  184, 
13  Ky.  Law  Rep.  956;  Johnson  v.  Dumeyer,  66  S.  W.  1025,  23 
Ky.  Law  Rep.  2243.  In  other  words,  the  accepted  doctrine  in  this 
state  is  that  restraints  upon  alienation  may  be  imposed  for  a  reason- 
able period.  This  court  has,  however,  never  fixed  a  limit  to  such  re- 
straint, but  in  Stewart  v.  Brady,  supra,  it  was  held  that  a  devise  of 
land  to  the  testator's  daughter,  with  the  limitation  that  it  should  not 
be  disposed  of  by  her  until  she  became  35  years  of  age,  was  reason- 
able, and  in  Kean's  Guardian  v.  Kean,  18  S.  W.  1032,  19  S  .W.  184, 
13  Ky.  Law  Rep.  956,  it  was  held  that  a  restriction  accompanying  a 
devise  of  real  estate  to  a  son  of  the  testator  that  he  should  not  have 
the  power  to  dispose  of  it  until  he  became  28  years  of  age  was  good. 
If  such  a  restriction  may  be  imposed  for  the  periods  indicated  by 
the  cases  supra,  why  may  it  not  endure  for  a  longer  time,  or,  as  con- 
templated by  the  testator  in  this  case,  during  the  life  of  his  widow, 
the  tenant  for  life  of  the  real  estate,  the  alienation  of  which  is  at- 
tempted to  be  restricted?  The;  manifest  intention  of  the  testator,  R. 
A.  Lightfoot,  was  to  preserve  the  property  intact  during  the  life  of 
the  widow,  and  until  it  should  be  taken  in  possession  by  the  daughters. 
The  widow  was  beyond  middle  life  when  the  will  was  probated,  so 
after  all  her  life  expectancy  was  not  then  so  great  as  to  render  un- 
leasonable  the  restriction  placed  by  the  testator  upon  the  right  of  the 
devisees  to  dispose  of  the  property.     After  a  careful  consideration 


598  RESTRAINTS  AND    DISABILITIES    OF    TRANSFERS 

by  the  whole  court  of  the  question  presented  by  the  record,  it  is 
deemed  safer  to  adhere  to  the  former  decisions  of  the  court  thereon, 
though  this  conclusion  has  not  been  reached  without  misgiving  as  ta 
its  correctness  upon  the  part  of  a  minority  of  the  court;  the  writer 
of  this  opinion  being  of  that  minority.  It  may  not,  however,  be  im- 
proper to  suggest  that,  notwithstanding  the  restriction  imposed  by  the 
will  upon  the  power  of  the  devisees  to  dispose  of  the  real  estate  in 
question,  if  the  deed  of  general  warranty  tendered  appellant  by  them 
should  be  accepted,  they  probably  could  not  thereafter  recover  the 
property ;  at  any  rate,  they  could  not  do  so  without  being  made  to 
account  upon  their  warranty  for  the  consideration  received  by  them, 
with  interest." 

We  then  come  to  the  question  whether  or  not  the  restriction  con- 
tained in  the  will  under  discussion  is  reasonable.  Here  the  testator 
attempted  to  impose  a  restraint  upon  alienation,  not  for  a  specified 
period  of  time,  nor  until  the  devisee  arrived  at  a  certain  age,  but  dur- 
ing the  entire  lifetime  of  the  devisee.  The  general  rule  is  that  the  right 
of  alienation  is  an  inherent  and  inseparable  quality  of  every  vested 
fee-simple  estate.  To  hold  that  alienation  could  be  restrained  during 
the  hfetime  of  the  fee-simple  holder  would  be  to  deprive  the  fee  of 
all  its  essential  qualities.  As  said  by  Littleton:  "If  such  a  condi- 
tion be  good,  then  the  condition  should  oust  him  of  all  power  which 
the  law  gives  him,  which  should  be  against  reason."  While  bound 
by  the  former  adjudication  of  this  court  to  adhere  to  the  doctrine  that 
a  limitation  for  a  reasonable  length  of  time  is  vaHd,  we  have  no 
hesitation  in  saying  that  the  limitation  attempted  to  be  imposed  by 
the  will  in  question  is  unreasonable.  A  testator  cannot  devise  a  fee, 
and  then  destroy  it  entirely.  W^e  therefore  conclude  that  clause  15 
of  the  will  is  invalid. 

In  view  of  the  fact  that  the  deed  executed  to  James  L  Lisle  by 
John  H.  Payne  and  E.  P.  Halley,  Sr.,  does  not  convey  a  fee-simple 
estate,  and  inasmuch  as  said  trustees  are  before  the  court,  judgment 
may  be  entered  upon  the  return  of  the  case  declaring  that  deed  void 
and  directing  the  trustees  to  make,  in  conformity  with  this  opinion, 
a  deed  to  the  property  in  question  to  James  L.  Lisle. 

On  the  appeal  of  L.  V.  Harkness  and  of  Rufus  Lisle,  Jr.,  etc.,  the 
judgment  is  affirmed.  Judgment  on  the  appeal  of  James  L.  Lisle,  etc., 
is  reversed,  and  cause  remanded  for  proceedings  consistent  with  this 
opinion." 

8  In  further  recognition  of  the  validity  of  a  restraint  on  alienation  for  a 
reasonable  tiuje,  see  .Stewart  v.  Brady,  3  Bush  (.Ky.)  G23  (ISGS) ;  Wallace  v. 
.Smith,  ]].'!  Ky.  'JCy.],  OS  S.  W.  131  (1902) ;  In  re  Dugdale,  3S  Ch.  Div.  17G  (ISSS). 
The  wfiulit  of  authority  is.  however,  that  general  restraints  of  alienation  even 
for  a  limited  period  are  void,  in  that  they  deprive  the  first  taker  during  that 
time  of  the  inherent  power  of  alienation.  See  Potter  v.  Couch,  141  U.  S. 
296,  315,  11  Sup.  Ct.  1005,  35  L.  Ed.  721  (lJ:96j.  And  see  Burdick,  Keal  Prop. 
703. 


PERSONS   UNDEK   DISABILITIES  599 


III.  Persons  Under  Disabilities 


HALL  V.  BOLLEN. 

(Court  of  Appeals  of  Kentucky,  1912.     148  Ky.  20,  145  S.  W.  li:;6,  Ann. 

Cas.  1913E,  436.) 

Appeal  from  circuit  court,  Knott  county. 

Action  by  Linda  Hall  against  Green  Bollen.  From  a  judgment 
for  defendant,  plaintiff  appeals.     Afifirmed. 

Clay,  C.  Appellant,  Linda  Hall,  was  the  owner  of  about  75  acres 
of  mountain  land  in  Knott  county,  which  she  inherited  from  her 
father,  and  upon  which  she  and  her  husband  lived.  On  August  20, 
1901,  appellee  bought  the  land,  and  the  deed  thereto,  at  his  request, 
was  made  to  his  father,  J.  R.  Bollen. 

On  October  8,  190S,  or  about  seven  years  thereafter,  appellant, 
Linda  Hall,  brought  this  action  against  appellee,  Green  Bollen,  to  can- 
cel the  deed  to  J.  R.  Bollen,  and  to  recover  the  property  from  ap- 
pellee. She  pleads  duress  on  the  part  of  her  husband,  the  grantee'^ 
failure  to  pay  for  the  property,  and  mental  incapacity  as  grounds  for 
canceling  the  deed.  On  the  question  of  duress,  she  alleges,  in  sub- 
stance, that  her  husband  told  her  that,  if  she  did  not  sell  the  land  or 
let  him  sell  it,  he  would  leave  her,  or  that  she  could  keep  the  land  and 
he  would  go;  that  if  she  did  sign  the  deed  and  acknowledge  it  she, 
did  it  against  her  will,  and  at  the  time  she  signed  it  she  did  not 
know  what  she  was  doing,  or  was  induced  to  sign  it  by  the  threats  of 
her  husband.  She  further  says  that  at  the  time  the  deputy  clerk  came 
to  take  her  acknowledgment  her  little  girl  was  lying  a  corpse,  and 
had  not  been  dead  more  than  30  minutes;  that  she  was  wholly  un- 
able, under  the  mental  strain  she  was  in,  to  do  any  business  at  the 
time,  and  does  not  remember  signing  and  acknowledging  the  deed. 
She  also  says  that  she  never  received  any  benefit  from  the  $150  which 
appellee,  Bollen,  pretended  to  pay  her  husband.  By  amended  petition, 
she  further  pleaded  fraud  on  the  part  of  appellee,  because  of  the  fact 
that  the  deed  was  made  to  his  father,  and  not  to  him.  Appellee 
denied  the  allegations  of  the  petition,  and  also  pleaded  the  five-year 
statute  of  limitations.  Evidence  was  heard,  and,  upon  final  submis- 
sion, the  petition  was  dismissed.  From  that  judgment,  this  appeal 
is  prosecuted. 

Appellant  testifies  that  she  did  not  know  for  some  time  after  she 
and  her  husband  made  the  deed  that  it  was  made  to  J.  R.  Bollen 
instead  of  Green  Bollen.  She  did  not  think  the  clerk  really  explained 
the  deed  to  lier.  Remembered  signing  something,  but  was  so  "pes- 
tered" over  the  death  of  her  child,  which  had  occurred  a  few  min- 

f  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  258-264. 


600  RESTRAINTS  AND    DISABILITIES    OP   TRANSFERS 

utes  before,  that  she  did  not  know  what  it  was.  The  death  of  her 
child  occurred  just  a  short  time  before  the  deputy  clerk,  her  husband, 
and  Green  Bollen  came  to  the  house.  Her  husband  had  often  talked 
of  selling  the  land,  but  she  had  told  him  she  did  not  want  to  sell  it; 
whereupon  he  replied,  "By  God,  you  go,  and  I'll  stay."  Her  husband 
was  a  very  "fractious"  man,  and  she  generally  did  what  he  told  her 
to  do.  He  never  told  her  about  selling  the  land  until  after  the  clerk 
came  to  take  the  acknowledgment.  He  told  her  he  wanted  her  to 
sign  it;  but  she  tried  to  put  him  oflf  to  some  other  time.  He  then 
"frowned  his  face,"  and  made  a  motion  for  her  to  sign  it,  and  she 
did  so.  She  then  signed  it  against  her  will.  She  was  under  great 
mental  strain  at  the  time.  On  cross-examination,  she  stated  that  she 
did  not  remember  what  the  clerk  said  to  her.  She  admitted  that  her 
husband  received  some  money  and  some  live  stock,  which  he  went 
through  with  for  the  benefit  of  the  family.  Appellant's  mother  tes- 
tifies that  she  was  present  when  appellant  signed  the  deed.  It  was 
about  an  hour  after  the  child  died.  The  child  had  been  ill  for  a  long 
time,  and  she  saw  that  it  was  perishing,  and  she  was  glad  that  death 
came.  If  the  clerk  did  read  or  explain  the  deed  to  her,  it  was  past 
her  recollection.  Appellant  was  in  great  mental  grief,  and  she  did 
not  think  appellant  was  capable  of  doing  any  business.  On  cross- 
examination,  she  stated  that  she  never  lost  her  mind  in  the  presence 
of  grief,  and  did  not  suppose  appellant  did.  When  the  clerk  took 
the  acknowledgment,  he  took  appellant  aside.  Her  husband  walked 
around  the  house.  The  clerk  asked  appellant  if  she  was  signing  the 
deed  of  her  own  free  will,  and  appellant  said,  "Humph." 

S.  J.  Gayheart  testifies  that  appellant's  husband.  Green  Bollen,  and 
the  deputy  clerk  came  to  appellant's  house  just  a  few  minutes  after 
the  child  died.  People  there  said  that  Green  Bollen  had  bought  the 
land  of  Elijah  Hall,  and  had  come  to  get  the  deed  fixed.  He  does  not 
know  whether  appellant  was  grieving  at  the  time  they  came ;  but  she 
had  been.  Was  of  the  opinion  that  the  land  was  worth  about  $200 
at  that  time.  Previous  to  this  time,  he  had  bought  of  appellant  and 
her  husband  25  or  30  acres,  and  the  best  part  of  the  land,  for  $50, 
or  about  $2  an  acre. 

According  to  the  evidence  for  appellee,  as  given  by  appellee,  the 
deputy  clerk,  and  other  witnesses,  appellee  was  approached  by  appel- 
lant's husband  and  asked  to  purchase  the  land.  He  agreed  to  take 
it  at  the  price  of  $180.  They  then  started  for  appellant's  home.  On 
the  way,  they  were  informed  of  the  child's  death.  They  went  to 
the  house.  The  deputy  clerk  took  his  seat  on  the  porch  and  wrote 
the  deed.  When  the  deed  was  completed,  the  clerk  required  both  ap- 
pellant's husband  and  appellee  to  leave.  They  went  around  the  house. 
The  nature  and  effect  of  the  instrument  was  explained  to  appellant, 
and  she  thereupon  acknowledged  it  as  her  voluntary  act  and  deed. 
According  to  the  appellee,  the  deed  was  ftiade  to  his  father,  because 


PERSONS   UNDER    DISABILITIES  601 

he  was  young  at  the  time,  and  had  not  married.  His  brother,  how- 
ever, says  that  the  deed  was  made  to  his  father  because  his  father 
furnished  the  money.  After  the  deed  was  prepared,  signed,  and 
acknowledged  by  the  parties,  appellee  paid  appellant's  husband  some 
cash,  and  then  delivered  to  him  a  cow  and  a  yoke  of  oxen,  and  paid 
the  balance  of  the  purchase  price  by  discharging  a  mortgage  lien  on 
the  property.  Appellant's  husband  did  not  indicate  in  any  way  that 
he  was  compelling  appellant  to  sign  the  deed ;  and,  while  she  had  been 
crying  some,  she  was  perfectly  composed  at  the  time  the  transaction 
was  closed.  Under  the  agreement,  appellant  and  her  family  could 
remain  on  the  land  until  in  the  fall.  They  did  remain  there  until  that 
time,  and  then  moved  into  a  house  about  three  miles  distant.  Ap- 
pellee put  about  $600  worth  of  improvements  on  the  premises,  and 
made  a  good  farm  out  of  it.  The  farm  was  worth  about  $180,  the 
price  paid. 

We  deem  it  unnecessary  to  decide  whether  or  not  the  alleged  acts 
of  appellant's  husband  constituted  duress.  It  is  sufficient  to  say  that 
the  appellant  may  not,  in  this  action,  avail  herself  of  such  plea. 
In  the  first  place,  the  evidence  utterly  fails  to  show  that  appellee  or 
his  father,  the  grantee  in  the  deed,  had  any  knowledge  of  the  alleged 
acts  of  the  husband.  Being  an  innocent  purchaser  for  value  of  the 
property  in  question,  without  knowledge  of  any  duress  exercised 
over  appellant  by  her  husband,  he  will  be  protected  in  his  purchase. 
Deputy  V.  Stapleford,  19  Cal.  302;  Hall  v.  Patterson,  51  Pa.  289; 
Compton  V.  Bunker  Hill  Bank,  96  111.  301,  36  x\m.  Rep.  147;  Rogers 
V.  Adams,  66  Ala.  600;    Line  v.  Blizzard,  70  Ind.  23. 

In  the  next  place,  it  is  a  well-settled  rule  that,  where  it  is  sought 
to  avoid  a  contract  because  of  duress,  the  person  seeking  such  avoid- 
ance must  proceed  within  a  reasonable  time  after  the  removal  of 
the  duress.  If  he  remain  silent  for  an  unreasonable  length  of  time, 
or  if  he  keep  property  which  he  may  have  acquired  under  the  con- 
tract, or  otherwise  recognize  the  validity  of  the  contract,  he  will  be 
held  to  have  elected  to  waive  the  duress  and  ratify  the  contract.  Thus, 
in  the  case  of  Eberstein  v.  Willets,  134  111.  101,  24  N.  E.  967,  where 
it  was  sought  to  avoid  a  deed  for  duress,  an  unexplained  delay  of 
over  three  years  in  bringing  the  action  was  held  sufficient  to  ratify 
the  deed.  In  Davis  v.  Fox,  59  Mo.  125,  the  same  rule  was  applied, 
where  there  was  a  delay  of  seven  years.  In  Gregor  v.  Hyde,  62  Fed. 
107,  10  C.  C.  A.  290,  a  delay  of  three  years  in  bringing  the  suit  was 
held  sufficient  to  constitute  a  ratification.  In  Schee  v.  McOuilken, 
59  Ind.  269,  where  a  wife  sought  to  avoid  a  lease  on  the  ground  of 
duress  imposed  upon  her  by  her  husband,  and  no  steps  were  taken 
to  avoid  the  lease  until  three  years  and  a  half  after  its  execution,  it 
was  held  that  her  ratification  of  the  lease  would  be  inferred.  In 
this  case,  the  live  stock,  which  constituted  a  part  of  the  purchase  price, 
was  delivered  to  appellant's  husband.     She  recognized  the  cow  as  her 


C02  RESTRAINTS  AND    DISABILITIES    OF   TRANSFERS 

property,  and  stated  that  no  officer  could  take  it  under  an  execution 
for  her  husband's  debt.  The  trade  was  made  in  August.  She  and 
her  husband  Hved  upon  the  land  for  several  weeks,  and  then  moved  to 
a  place  about  three  miles  distant.  Thereafter  appellee,  with  appel- 
lant's knowledge,  put  valuable  improvements  upon  the  land.  Notwith- 
standing these  facts,  she  delayed  bringing  suit  for  over  seven  years. 
Under  the  circumstances,  her  conduct  amounts  to  a  ratification  of  the 
contract. 

The  evidence  utterly  fails  to  show  such  mental  incapacity  on  the 
part  of  appellant  as  to  prevent  her  from  knowing  and  appreciating 
the  nature  and  character  of  the  transaction.  There  is  not  only  evi- 
dence to  the  effect  that  she  was  informed  some  time  before  their  ar- 
rival that  the  parties  were  coming  to  get  the  deed,  but  she  herself 
admits  that  after  their  arrival  she  was  apprised  of  the  purpose  of 
their  visit.  Even  appellant's  mother  testifies  that  the  deputy  clerk 
asked  appellant  if  she  was  signing  the  deed  of  her  own  free  will, 
and  the  weight  of  the  evidence  shows  that  the  nature  and  effect  of 
the  instrument  was  fully  explained  to  appellant.  While  the  time  was 
certainly  inopportune,  and  showed  a  lack  of  delicacy  on  the  part  of 
the  parties  thereto  in  asking  appellant  to  execute  a  conveyance  just 
after  the  death  of  her  child,  this  fact,  coupled  with  her  distress  of 
mind,  is  not  sufficient  to  justify  the  cancellation  of  the  deed.  That 
she  was  in  distress  was  doubtless  true ;  but  it  is  equally  true  that  in 
executing  the  deed  she  knew  and  fully  appreciated  the  nature  and 
effect  of  the  transaction. 

There  is  nothing  to  show  that  any  fraud  was  practiced  upon  appel- 
lant. There  is  no  proof  that  the  price  paid  for  the  land  was  less  than 
its  actual  value.  Appellant  admits  that  the  cash  payment  and  the  per- 
sonal property  were,  with  her  knowledge,  spent  for  the  benefit  of 
the  family.  Indeed,  the  only  fraud  relied  upon  is  the  fact  that  the 
deed  was  made  to  appellee's  father,  instead  of  to  appellee.  The  rights 
of  no  creditors  being  involved,  the  purchaser  of  land  may  have  the 
deed  made  to  any  one  he  pleases.  In,  the  absence  of  other  circum- 
stances tending  to  show  fraud,  the  mere  fact  that  the  grantor  exe- 
cutes and  acknowledges  a  deed  to  the  purchaser's  father,  though  he 
believes  the  purchaser  is  the  grantee  therein,  will  not  amount  to  a 
fraud  upon  the  grantor,  where  the  grantor  receives  the  benefit  of  the 
full  purchase  price. 

Judgment  affirmed. 


CREATION   OF   INTERESTS    IN    LAND    BY    POWERS  603 


CREATION  OF  INTERESTS  IN  LAND  BY  POWERS 
I.  Powers  of  Appointment  ^ 


HEINEMANN  v.  DE  WOLF. 
(Supreme  Court  of  Rhode  Island,  1903.     25  R.  I.  243,  55  Atl.  707.) 

Axtion  by  Emily  M.  Heinemann  and  others  against  James  F.  De 
Wolf  and  others  for  the  construction  of  a  will.  Judgment  for  com- 
plainants. 

Argued  before  Stiness,  C.  J.,  and  Tillinghast  and  Douglas,  JJ. 

TiLLiNGHAST,  J.  The  real  estate  described  in  this  bill  of  complaint 
having  been  sold  by  the  commissioner  who  was  appointed  for  that 
purpose,  the  same  is  now  before  the  court  for  the  purpose  of  de- 
termining as  to  the  ownership  of  one-twelfth  part  of  the  proceeds  of 
the  sale,  in  accordance  with  a  decree  heretofore  entered  in  the  case. 
This  one-twelfth  part  is  claimed  by  the  respondent  James  De  Wolf 
Perry,  to  whom,  after  the  death  of  Mrs.  Perry,  her  husband,  Ray- 
mond H.  Perry,  by  deed  dated  September  13,  1900,  conveyed  to  his 
brother,  said  James  De  Wolf  Perry,  "all  his  interest  in  the  estate 
of  his  late  wife,  Ellen  M.  Perry,  deceased,  under  and  by  virtue  of' 
her  will,  or  otherwise,  whether  real  or  personal,  and  of  whatever 
kind  and  nature,"  in  trust  for  certain  purposes  mentioned  in  said  deed. 
And  he,  said  James  De  Wolf  Perry,  claims  that  said  one-twelfth  passed 
to  Raymond  H.  Perry,  under  the  residuary  clause  of  Mrs.  Perry's 
will,  and  now  belongs  to  him  by  virtue  of  said  conveyance.  This 
one-twelfth  part  of  the  proceeds  of  the  sale  of  said  real  estate  is  also 
claimed  by  the  Fidelity  Insurance,  Trust  &  Safe  Deposit  Company, 
of  the  city  of  Philadelphia,  as  trustee  for  the  children  of  Mrs.  Perry ; 
the  contention  in  their  behalf  being  that  it  did  not  pass  under  the 
residuary  clause  of  Mrs.  Perry's  will,  and  hence  was  not  included  in 
said  conveyance.  The  title  to  this  one-twelfth  part  of  said  proceeds 
therefore  depends  upon  the  construction  which  shall  be  put  upon  the 
fourth  clause  of  the  will  of  said  Ellen  M.  Perry.  And  the  specific 
question  raised  may  be  stated  thus :  Does  the  fourth  paragraph  of 
the  will  of  Ellen  M.  Perry  include  and  dispose  of  the  one-twelfth  in- 
terest of  the  real  estate  of  her  father,  Charles  H.  Dabney,  of  which 
she  became  seised  in  fee  simple  on  the  death  of  her  sister  Frances  Eliz- 
abeth Rhett  without  issue? 

Charles  H.  Dabney  died  December  15,  1879,  leaving  a  last  will  and 
testaiinent,  which  was  duly  admitted  to  probate  in  Philadelphia,  Pa., 

1  For  discussion  of  principles,  see  Burdick,  Real  Pr^p.  §  26S  et  seq. 


604  CREATION    OF   INTERESTS   IN    LAND   BY   POWERS 

on  August  6,  1880,  and  was  also  filed  and  recorded  in  Bristol,  R.  I., 
on  March  10,  1900.  By  said  will  he  left  the  bulk  of  his  estate  in  trust 
for  the  benefit  of  his  wife,  Ellen  Maria  Dabney,  for  life,  and  after 
her  in  trust  for  the  benefit  of  his  four  daughters,  namely,  Ellen  Maria 
De  Wolf,  wife  of  James  F.  De  Wolf,  Jr.,  of  Bristol,  and  who,  after 
the  death  of  said  James,  married  Raymond  H.  Perry;  Emily  M. 
Heinemaiin;  Frances  Elizabeth  Dabney,  who  afterwards  married 
Julius  Rhett;    and  Mary  F.  Payson. 

So  far  as  the  question  at  issue  is  concerned,  the  material  parts  of  Mr. 
Dabney's  will  are  contained  in  the  first  and  second  codicils  thereto, 
which  read  as  follows : 

(1)  "If  either  of  my  daughters  shall  die  leaving  no  children  or 
issue  of  a  deceased  child,  then  and  in  every  such  case  it  is  my  will 
that  the  portion  which  by  said  will  would  go  to  such  daughter's  chil- 
dren or  issue  of  her  child,  if  living,  shall  go  to  her  sisters  then  sur- 
viving, and  the  issue  then  living  of  any  of  her  sisters  then  deceased, 
share  and  share  alike,  to  each  sister,  and  the  issue  of  a  deceased 
sister  taking  its  parent's  share;  to  them  severally  for  their  own  use 
forever. 

(2)  "It  is  my  will  and  I  order  and  direct  that  if  either  of  my  daugh-^ 
ters  shall  die,  leaving  children  her  surviving,  or  leaving  a  child  and 
issue  of  a  deceased  child,  her  surviving,  such  daughter  is  empowered 
hereby  to  divide  into  such  shares  or  portions,  the  whole  or  any  part 
of  my  estate,  which  by  said  will  and  former  codicil  would  go  to  her 
children,  and  to  give,  grant,  devise,  bequeath  or  appoint  the  same 
to  and  among  such  children  and  issue  or  any  of  them  in  such  pro- 
portion, ratio  or  shares,  equal  or  unequal,  as  she  shall  deem  fit." 

Mrs.  Dabney  died  a  number  of  years  ago.  Mrs.  Rhett  died  with- 
out issue  on  January  2,  1898,  whereby  the  one-fourth  of  the  estate 
held  in  trust  for  her  under  her  father's  will  vested  in  her  three  sur- 
viving sisters,  namely,  Mrs.  Perry,  Mrs.  Heinemann,  and  Mrs.  Pay- 
son,  one-third  in  each  (that  is,  one-twelfth  of  the  whole  estate),  in 
fee  simple. 

Mrs.  Perry  (formerly  Mrs.  De  Wolf)  died  May  28,  1899,  leaving, 
surviving  her,  her  second  husband,  Raymond  H.  Perry,  and  three 
children  by  her  first  husband,  and  leaving  a  will  dated  July  20,  1898, 
which  was  duly  admitted  to  probate.  The  fourth  paragraph  of  this 
will,  in  so  far  as  it  is  material  to  the  question  raised,  reads  as  follows : 

"For  the  purpose  of  executing  the  power  which  is  vested  in  me  un- 
der the  will  and  codicil  of  my  father,  Charles  H.  Dabney,  I  give, 
devise  and  bequeath  the  estate  which  I  am  authorized  by  said  will 
and  codicil  to  appoint,  to  my  children  who  may  be  living  at  the  time 
of  my  death  and  the  issue  of  any  of  my  children  who  then  may  be 
deceased,  such  issue  taking  the  share  which  their  parent  would  have 
taken  if  living,  in  equal  shares  and  portions,  but  it  is  my  will  that 
the  estate  thus  appointed  shall  be  held  by  the  said  Fidelity  Insurance, 


POWERS   OF   APPOINTMENT  605 

Trust  &  Safe  Deposit  Company,  of  the  City  of  Philadelphia — In  trust," 
etc. 

On  the  part  of  said  trust  company,  representing  the  children  of 
Mrs.  Ellen  M.  Perry,  it  is  contended  that  by  the  fourth  clause  of  her 
will  she  intended  to  pass  all  her  interest  in  said  estate  to  them,  and 
not  leave  it  to  pass  to  her  husband,  as  a  part  of  her  general  residuary 
estate.  And  it  is  argued  that  the  language  of  said  clause  appropri- 
ately expresses  this  intention,  and  is  apt  and  sufficient  to  include  said 
one-twelfth  of  the  estate.  This  contention  is  based  mainly  upon  the 
claim  that  Mrs.  Perry  took  this  one-twelfth  part  under  the  first  codi- 
cil of  her  father's  will,  and  by  the  second  codicil  was  given  power 
to  dispose  thereof  by  appointment  among  her  children  or  issue,  only. 
We  are  unable  to  assent  to  this  contention.  Under  the  first  codicil 
of  Mr.  Dabney's  will,  the  share  of  any  daughter  dying  without  issue 
passed  to  her  sisters  then  surviving,  and  the  issue  of  any  deceased 
sister  equally — the  issue  of  a  deceased  sister  taking  its  parent's  share — 
"to  them  severally  for  their  own  use  forever."  Upon  the  death  of 
Mrs.  Rhett,  therefore,  one-fourth  of  her  father's  estate  was  discharged 
of  the  trust  created  by  his  will,  and  vested  absolutely  in  the  three 
surviving  daughters,  namely,  Mrs.  Heinemann,  Mrs.  Payson,  and  Mrs. 
Perry;  each  taking  one-third  of  the  one-fourth,  or  one-twelfth  of 
the  whole.  And  this  part  of  said  estate  being  vested  in  Mrs.  Perry 
in  fee  simple,  of  course  she  could  dispose  of  it  by  will  or  otherwise, 
as  she  saw  fit. 

As  showing  that  the  one-twelfth  in  question  does  not  belong  to  the 
children  of  Mrs.  Perry,  it  is  to  be  observed  that  the  property  covered 
by  the  first  codicil  of  Mr.  Dabney's  will  was  not  to  go  to  the  chil- 
dren of  a  surviving  sister,  but  only  to  the  children  of  a  deceased  sis- 
ter. And  at  the  time  of  the  death  of  Mrs.  Rhett,  Mrs.  Perry  was 
a  surviving,  and  not  a  deceased,  sister.  It  is  also  to  be  observed  that 
the  power  of  appointment  conferred  by  Mr.  Dabney  under  the  sec- 
ond codicil  of  his  will  is  limited  to  such  portions  of  his  estate  as  would 
pass  under  the  first  codicil  to  the  children  of  a  deceased  daughter  who 
should  survive  her.  Upon  the  death  of  Mrs.  Rhett  without  issue,  there- 
fore, it  would  seem  to  be  clear  that  her  surviving  sisters,  and  not  their 
children,  were  entitled  to,  and  became  the  absolute  owners  of,  the 
one-fourth  part  of  the  estate  which  she  took  under  her  father's  will. 
Moreover,  as  pertinently  argued  by  counsel  for  Mr.  James  De  Wolf 
Perry,  "If  Mr.  Dabney  intended  that  the  power  given  by  his  second 
codicil  should  in  any  way  limit  the  absolute  estate  which  might  vest 
in  Mrs.  Perry,  then  the  limitation  was  void  as  being  repugnant  to  the 
absolute  gift.  But  the  clearly  expressed  intention  of  Mr.  Dabney 
was  to  empower  his  daughters  to  appoint  the  shares  their  children 
should  take  in  that  part  of  his  estate  which  went  to  such  children 
under  his  will,  leaving  his  daughters  free  to  do  what  they  wished 
with  their  own  estate." 


606  CREATION    OF    INTERESTS   IN    LAND  BY    POWERS 

It  appearing,  then,  that  the  interest  in  question  passed  to  Mrs.  Perry 
absolutely  on  the  death  of  her  sister,  Mrs.  Rhett,  we  come  now  to  con- 
sider the  question  hereinbefore  suggested,  namely,  whether  she  dis- 
posed of  said  interest  by  the  fourth  clause  of  her  will.  We  think  this 
question  must  be  answered  in  the  negative.  In  this  clause  the  testa- 
trix uses  the  expression,  "the  estate  which  I  am  authorized  by  said 
will  and  codicil  to  appoint."  She  thereby  clearly  restricted  herself  to 
the  power  of  appointment  contained  in  her  father's  will.  The  lan- 
guage used  plainly  shows  that  this  was  the  only  thing  she  had  in  mind ; 
that  she  was  not  attempting  to  dispose  of  her  own  estate,  but  only  of 
that  which  was  covered  by  the  power.  And  to  hold  that  anything  out- 
side of  the  exercise  of  the  power  was  intended  to  be  accomplished  by 
said  clause  would  be  to  force  the  language  used  beyond  its  natural 
meaning.  The  term  "appoint,"  particularly,  shows  that  the  testatrix 
did  not  intend  to  dispose  of  her  own  property,  as  this  term  is  never 
used  to  convey  one's  absolute  estate.  The  use  of  the  word  "power" 
also  shows  that  she  did  not  intend  to  include  her  own  estate  held  by 
her  in  fee,  as  a  power,  when  given  by  will,  contemplates  not  an  estate 
in  one's  self,  but  simply  the  authority  to  give  title  thereto.  And  in 
the  absence  of  anything  to  show  an  intention  to  the  contrary,  it  is  to 
be  presumed  that  the  testatrix  used  the  words  referred  to  in  their 
strict  legal  sense  and  meaning.  Chapin  v.  Hill,  1  R.  I.  446;  Bailey 
V.  Brown,  19  R.  I.  669,  36  Atl.  581. 

We  not  only  fail  to  find  anything  in  Mrs.  Perry's  will  to  indicate 
that  the  technical  words  referred  to  were  not  used  in  their  strict  legal 
sense,  but,  on  the  contrary,  the  language  used  by  her  in  the  fifth  para- 
graph, in  which  she  refers  to  the  fourth  paragraph  as  disposing  of  that 
estate  "over  which  I  have  a  power  of  appointment  under  the  will  of 
my  father,"  shows  that  she  well  understood  and  clearly  appreciated 
the  distinction  between  her  own  property  and  that  over  which  she 
had  and  was  exercising  the  power  of  appointment.  In  this  connec- 
tion it  is  pertinent  to  observe  that  when  she  executed  her  will,  on 
July  20,  1898,  her  sister  Mrs.  Rhett  had  been  dead  for  more  than 
six  months.  And  it  must  be  presumed  that  she  knew  and  well  un- 
derstood at  that  time  that  she  had  an  absolute  estate  in  one-twelfth 
of  the  property  included  in  the  trust  created  by  her  father's  will.  And 
the  fact  that  she  failed  to  use  any  language  in  said  fourth  clause  which 
would  be  apt  and  pertinent  to  convey  any  estate  excepting  that  to 
which  she  specifically  refers  shows  that  she  did  not  intend  to  include 
any  of  her  own  estate  therein.  And  of  course  the  law  is  "that  by 
the  simple  exercise  of  a  power  the  donee  will  pass  only  the  Tiiterest 
of  the  person  creating  it,  and  not  any  interest  or  franchise  of  his 
own."  1  Sug.  on  Powers,  293.  For  "a  power  of  appointment,"  as 
well  defined  by  Jessel,  M.  R.,  in  Frcme  v,  Clement,  18  L.  R.  (Ch. 
Div.)  504,  "is  a  power  of  disposition  given  to  a  person  over  property 
not  his  own,  by  some  one  who  directs  the  mode  in  which  that  power 
shall  be  exercised  by  a  particular  instrument."    And  where  the  donee 


POWERS  OF  APPOINTMENT  607 

of  a  power  makes  a  disposition  of  the  subject-matter  thereof  in  ex- 
press execution  of  the  power,  as  in  the  case  under  the  clause  now 
under  consideration,  such  disposition,  in  the  absence  of  anything  in 
the  context  showing  a  contrary  intention,  should  be  restricted  to  an 
execution  of  the  power  so  as  not  to  affect  the  donee's  individual 
estate.  22  Am.  &  Eng.  Ency.  L.  (2d  Ed.)  1115;  Moore  v.  Humpton, 
1  Whart.  (Pa.)  433;   Beardsley  v.  Hotchkiss,  96  N.  Y.  212. 

We  think  the  intention  of  the  testatrix,  by  the  fourth  clause  of 
her  will,  to  exercise  the  power  of  appointment  only,  and  not  to  dis- 
pose of  any  of  her  own  absolute  estate,  is  so  apparent  and  clear  as 
not  to  be  fairly  susceptible  of  any  other  interpretation.  And  hence, 
under  the  well-settled  rule  in  relation  to  the  execution  of  powers  (see 
Blagge  V.  Miles,  1  Story,  426,  Fed.  Cas.  No.  1,479;  Cotting  v.  De  Sar- 
tiges,  17  R.  I.  668,  24  Atl.  530,  16  L.  R.  A.  367;  Mason  v.  Wheeler, 
19  R.  I.  21,  31  Atl.  426,  61  Am.  St.  Rep.  734),  the  interest  in  ques- 
tion did  not  pass  to  said  trust  company,  but  did  pass  to  her  husband 
"under  the  residuary  clause  of  her  will.  We  therefore  decide  that  said 
one-twelfth  interest  now  belongs  to  the  respondent  James  De  Wolf 
Perry,  by  virtue  of  the  deed  of  conveyance  to  him  from  Raymond  H. 
Perry,  dated  September  13,  1900,  hereinbefore  referred  to.^ 

2  As  to  the  capacity  of  a  married  woman  to  execute  a  power,  see  Stearns  v. 
Fraleigb,  39  Fla.  603,  23  South.  18,  39  L.  R.  A.  705  (1897),  reported  ante,  p. 
248.  See,  also,  Appleton's  Appeal,  136  Pa.  354,  20  Atl.  521,  11  L.  R.  A.  85,  20 
Am.  St.  Rep.  925  (1890),  reported  ante,  p.  356,  as  to  the  application  of  the 
rule  of  perpetuities  against  powers. 


608  DEEDS   AND   THEIR    REQUISITES 

DEEDS  AND  THEIR  REQUISITES 
I.  Deed  Defined  ^ 


See  Jackson  ex  dem.  Gouch  v.  Wood,  ante,  p.  527. 


II.  Requisites  of  Deeds  ' 
1.  Consideration 


VINCENT  V.  WALKER. 

(Supreme  Court  of  Alabama,  1891.    93  Ala.  165,  9  South.  3S2.) 

Appeal  from  chancery  court,  Madison  county;  Thomas  Cobbs, 
Chancellor. 

Bill  in  equity  by  Louisa  J.  Vincent  against  E.  T.  Walker  and  oth- 
ers^  to  "cancel  a  deed  executed  by  complainant.  Complainant  appeals 
from  a  decree  dismissing  the  bill. 

McClELLAn,  J.  On  a  former  bill  by  the  present  appellant,  com- 
plainant below,  in  respect  of  the  facts  and  subject-matter  involved 
now,  it  was  held  that  the  transaction  between  Louisa  J.  Vincent  and 
E.  T.  Walker,  in  which  the  former  executed  a  deed  absolute  in  its 
terms  to  the  latter,  and  took  from  him,  in  a  separate  writing,  an  under- 
taking to  reconvey  to  her  the  land  in  controversy  upon  repayment  to 
him  of  the  consideration  recited  in  the  deed  within  a  certain  time,  was 
a  conditional  sale,  and  not  a  mortgage,  as  the  grantor  insisted  in  that 
bill.  So  considered  as  a  sale  by  Mrs.  Vincent,  the  property  belong- 
ing to  her  statutory  separate  estate,  it  was  further  decided  that  she, 
being  joined  therein  by  her  husband,  was  competent  to  so  contract  in 
relation  to  and  to  convey  the  land.  Vincent  v.  Walker,  86  Ala.  333,  5 
South.  465.  The  time  within  which  Mrs.  Vincent  had  the  privilege  of 
repurchasing  having  elapsed,  and  the  privilege  not  having  been  exer- 
cised, the  conveyance  is  shorn  of  the  defeasance  which  originally  at- 
tached to  it,  and  must  now  be  considered  as  if  it  had  been  an  ab- 
solute deed  ab  initio,  executed  with  all  the  formalities  essential  to  the 
divestiture  and  passing  of  the  statutory  separate  estate  of  a  married 
woman  in  land.  It  is  so  treated  in  the  present  bill,  which  proceeds  in 
the  name  of  Mrs.  Vincent  for  its  cancellation  as  a  cloud  on  her  title,  on 
the  ground  of  its  invalidity  by  reason  of  facts  extraneous  to  the  paper. 

The  infirmities  laid,  or  attempted,  in  one  way  or  another,  to  be  laid, 

1  For  discussion  of  principles,  SQp  Burdick,  Real  Prop.  §  281.  For  a  form  of 
a  warranty  deed,  see  Simons  v.  McLain,  51  Kan.  153,  32  Pac.  919  (1893),  re- 
ported herein,  ante,  p.  169.  As  to  the  nature  and  efifect  of  a  quitclaim  deed, 
see  Johnson  v.  Williams,  37  Kan.  179,  14  Pac.  537,  1  Am.  St.  Rep.  243  (1887),  re- 
ported heroin,  ante,  p.  461. 

«  For  discussion  of  principles,  see  Burdick, .Real  Prop.  §  282. 


REQUISITES   OF  DEEDS  609 

against  the  deed,  are  three:  (1)  That  its  execution  was  induced  by  a 
resort  to  undue  influence,  persuasions,  etc.,  on  the  part  of  the  grantor 
or  beneficiaries;  (2)  that  its  consideration  is  tainted  by  an  agreement 
in  composition  of  a  felony;  (3)  that  it  was  executed  without  consid- 
eration. Of  these  the  first  and  second  grounds  of  attack  may  be  sum- 
marily dismissed  without  further  discussion  than  to  say  that  the  facts 
in  respect  to  them  are  not  sufficiently  alleged,  and  could  not  be  found 
to  exist  on  the  evidence  in  this  record,  had  they  been  adequately  plead- 
ed. The  real  and  only  points  in  the  case,  therefore,  are  whether  the 
complainant  may  be  let  in  to  show,  and  has  shown,  that  the  deed  is 
not  supported  by  a  consideration. 

And,  first,  was  there  any  consideration?  In  our  opinion  there  was 
not.  The  facts  were  these:  One  Bradley  had  been  tax  collector  of 
the  city  of  Huntsville.  Appellee  Walker,  Frank  B.  Gurley,  and  an- 
other were  sureties  on  his  official  bond.  Gurley  had  indemnified  his 
co-sureties  against  loss  on  the  undertaking.  Bradley  made  default 
in  his  payments  to  the  city.  The  amount  of  his  deficit  was  supposed, 
it  seems,  to  be  about  $2,000.  The  sureties  were  notified  of  the  de- 
falcation, and  recognized  their  liability.  Gurley  and  Mrs.  Vincent 
were  brother  and  sister.  Bradley  married  a  daughter  of  Mrs.  Vin- 
cent. Walker  married  her  niece.  Mrs.  Vincent  was  not  at  any  time 
or  in  any  manner  bound  for  Bradley's  deficit.  Gurley  alone,  by  rea- 
son of  his  indemnification  of  his  co-sureties,  was  ultimately  liable  for 
the  whole  of  it.  At  his  suggestion,  Mrs.  Bradley  went  to  her  mother, 
and  induced  her  to  execute  this  deed  for  the  purpose  of  raising  $2,- 
000  with  which  to  pay  the  sum  Bradley  owed  the  city.  The  deed  was 
made  to  Walker  according  to  an  arrangement  between  him  and  Gur- 
ley. Gurley  deposited  $2,000  in  bank  to  Walker's  credit.  Against 
and  for  this  amount  Walker  drew  a  check  in  favor  of  Mrs.  Vincent, 
to  the  end  that  she  should  apply  its  proceeds  to  the  payment  of  Brad- 
ley's deficit.  To  that  end  she  at  once,  and  in  consonance  with  the  gen- 
eral arrangement,  indorsed  and  delivered  the  check  to  Bradley.  He 
collected  the  money  on  it,  and,  the  deficit  turning  out  to  be  only  $1,750, 
paid  that  sum  to  the  city  of  Huntsville,  and  paid  the  balance  of  $250 
to  Frank  B.  Gurley. 

It  is  at  once  manifest  from  these  facts,  as  to  which  there  is  really 
no  conflict  in  the  evidence,  that  Mrs.  Vincent  was  not  to  receive,  and 
'did  not  in  fact  receive,  one  cent  of  the  recited  consideration  for  her 
property.  It  is  clear  that  the  sole  purpose  was  to  reimburse  Gurley 
money  which  he  alone  was  ultimately  liable  to  pay,  and  for  which  she 
waT'Tn  nowise  responsible,  and  that  even  this  purpose  has  been  ex- 
ceeded in  Gurley's  favor  in  such  sort  that  he  has  received  $2,000  worth 
of  Mrs.  Vincent's  property  in  reimbursement  to  him  of  $1,750  ex- 
pended by  him  in  the  satisfaction  of  his  own  debt.  So  not  only  has 
Mrs.  Vincent  received  no  consideration  of  benefit  to  her,  and  not  only 
does  the  transaction  involve  no  consideration  of  detriment  to  Gurley, 
Burd.Cas.Real  Prop. — 39 


GIO  DEEDS    AND    THEIR    REQUISITES 

but  the  latter  has  actually  been  paid  $250  as  a  bonus  for  the  liquida- 
tion of  his  own  liability. "  It  will  not  do  to  say  that  when  the  check 
was  delivered  to  Mrs.  Vincent  it  was  a  payment  to  her,  and  that 
the  disposition  she  made  of  it  was  a  matter  with  which  Gurley  and 
Walker  had  nothing  to  do. 

There  is  no  force  in  the  suggestion  that,  if  this  was  not  a  payment 
to  her,  every  married  woman  who  made  a  sale  of  her  land,  and  re- 
ceived money  therefor,  could  assert  that  a  third  person  reaped  the 
benefit  of  it,  and  upon  that  ground  come  into  equity  with  unclean 
hands,  and  avoid  her  conveyance.  There  is  no  analogy  between  the 
two  cases.  Mrs.  Vincent  did  not  receive  this  money  or  this  check  to 
her  own  use.  She  was  a  mere  conduit  between  Gurley,  the  debtor,  and 
the  city  of  Huntsville,  the  creditor.  She  could  not  have  kept  the 
money  or  made  use  of  it.  She  was  a  trustee,  nothing  more  or  less, 
and  as  such  had  undertaken  to  indorse  and  deliver  the  check  to  Brad- 
ley, to  be  used  by  him  in  paying  a  debt  of  the  real  drawer  of  the 
paper;  and,  had  she  failed  to  so  indorse  and  deliver,  the  powers  of  a 
chancery  court  would  have  been  entirely  adequate  to  have  compelled 
the  execution  of  the  trust.  The  disposition  which  she  made  of  the 
check  was  notva  matter  with  which  Gurley  and  Walker  had  nothing  to 
do ;  but,  on  the  contrary,  it  was  the  precise  disposition  she  had  bound 
herself  to  them  to  make  of  it.  She  received  the  check  alone  on  the 
condition  that  it  should  be  used  in  the  way  in  which  it  was  used ;  and 
she  could  not  have  devoted  it,  or  the  proceeds  of  it,  to  any  other  end. 
•Her  hands  are  exceedingly  empty,  but  not  "unclean."  They  would 
have  been  full,  but  by  no  means  clean,  had  she  diverted  this  money 
from  the  purposes  for  which  alone  it  was  paid  to  her.  We  are  quite 
assured  of  the  soundness  of  the  conclusion  we  have  announced,  that 
this  deed  is  wholly  unsupported  by  any  consideration  either  of  benefit 
to  the  grantor  or  detriment  to  the  grantee  or  beneficiaries.  To  cancel 
it  would  be  to  give  to  Mrs.  Vincent  that  to  which  she  is  clearly  enti- 
tled, and  to  take  nothing  from  Gurley  and  Walker  to  which,  in  equity 
and  good  conscience,  they  have  any  claim. 

It  is  a  well-established  general  rule  that  the  grantor  in  a  deed  which 
acknowledges  the  receipt  of  a  valuable  consideration  is  estopped,  as 
against  the  grantee,  to  say  no  valuable  consideration  was  in  fact  re- 
ceived, though  the  character  and  amount  of  the  consideration  may, 
even  between  the  parties  to  the  instrument,  be  shown  to  be  other 
than  as  recited.  5  Amer.  &  Eng.  Enc.  Law,  pp.  436,  437;  3  Brick. 
Dig.  p.  299,  §  36  et  seq. ;  Bank  v.  McDonnell,  89  Ala.  434,  8  South. 
137,  9  L.  R.  A.  645,  18  Am.  St.  Rep.  137.  But  this  rule  cannot  apply 
to  a  married  woman  so  as  to  prevent  her  showing  the  absence  of  all 
consideration  for  her  deed.  With  respect  to  a  married  woman  under 
such  'disabilities  as  rested  on  her  under  the  statute  of  force  at  the 
time  of  this  transaction,  the  rule  is  that  only  a  valid  deed — such  deed 
as  the  statute  authorized  her  to  execute — can  raise  up  any  estoppel 
against  her.  "It  is  clear  that  a  married  woman  under  disabilities  can- 


DESCRIPTION    OF   PROPERTY   CONVEYED  611 

not  be  estopped  just  as  if  she  were  sui  juris^  and  the  only  way  of  de- 
termining in  what  cases  she  may  be  estopped  is  to  ascertain — First, 
whether  the  alleged  estoppel  grows  out  of  a  judgment,  deed,  con- 
tract, or  tort;  and,  second,  whether  such  judgment,  deed,  contract,  or 
tort  is  binding  as  such  on  the  married  woman."  14  Amer.  &  Eng. 
Enc.  Law,  pp.  637,  638 ;   Alexander  v.  Saulsbury,  37  Ala.  375-378. 

The  statute  did  not  confer  on  Mrs.  Vincent  and  her  husband  capacity 
to  dispese  of  her  land  as  was  attempted  in  this  transaction.  They 
had  power  to  sell  it,  but  not  to  mortgage  it,  and  not  to  give  it  away. 
The  statute  contemplates  and  provides  for  only  a  "sale,"  in  the  legal 
sense  of  the  term, — a  transfer  of  it  for  a  valuable  consideration, — 
and,  in  terms,  makes  provision  for  the  uses  and  ends  to  which  the 
consideration  received  shall  be  devoted.  The  proceeds  of  the  sale 
were  to  be  invested  in  other  property  for  the  wife,  or  used  in  "such 
manner  as  is  most  beneficial  for  the  wife."  Code  1876,  §§  2707,  2709. 
In  other  words,  as  said  by  Brickell,  C.  J. :  "The  power  conferred  by 
the  statute  and  the  constitution  (and  it  is  strictly,  narrowly,  enabling) 
is  to  sell,  converting  the  thing  sold  into  money  or  its  equivalent,  and 
no  other  power  can  be  exercised."  Shulman  v.  Fitzpatrick,  62  Ala. 
571 ;  Peeples  v,  Stolla,  57  Ala.  53.  The  transaction  here  not  being 
a  sale  within  the  enabling  statute  cited,  the  recital  in  the  deed  ac- 
knowledging the  receipt  of  a  valuable,  and,  for  aught  that  appears,  an 
adequate,  consideration,  does  not  estop  Mrs.  Vincent  to  show  that 
there  was  no  consideration,  as  it  would  do  had  she  been  sui  juris. 
Harden  v.  Darwin,  ll  Ala.  472,  482 ;  Wilder  v.  Wilder,  89  Ala.  414, 
418,  '7  South.  767,  9  L.  R.  A.  97,  18  Am.  St.  Rep.  130.  And,  in  our 
opinion,  as  we  have  said,  she  has  clearly  shown  that  there  was  no 
consideration  for  the  deed.  It  is  void,  and  must  be  canceled,  as  a 
cloud  on  her  title,  as  prayed  in  her  bill. 

Accordingly,  the  decree  of  the  chancellor  is  reversed,  and  ajecree 
will  be  there  rendered  adjudging  the  invalidity  of  the  deed,  and  di- 
recting it  to  be  delivered  up  to  the  register  of  the  Madison  chancery 
court,  and  be  canceled  by  him.     Reversed  and  rendered.* 


III.  Description  of  Property  Conveyed  * 


HOBAN  V.  CABLE. 
(Supreme  Court  of  Michigan,  1894.     102  Mich.  206,  60  N.  W.  466.) 

Error  to  circuit  court,  Mackinac  county ;   C.  J.  Pailthorp,  Judge. 

Ejectment  by  James  Hoban  against  James  F.  Cable  to  try  title  to 
a  parcel  of  land  on  Mackinac  Island.  Judgment  for  plaintiff,  and 
defendant  brings  error.    Affirmed. 

3  As  to  tlie  sutticiency  of  consideration  in  a  deecl,  see  Fuller  v.  Missroon,  35 
S.  C.  314,  14  S.  E.  714  (1S92),  reported  herein  ante,  p.  31. 

•I  For  discuosion  of  principles,  see  Burdick,  Real  Prop.  §  284. 


612  DEEDS    AND    THEIR    REQUISITES 

Montgomery,  J.  This  is  an  action  of  ejectment.  The  trial  was 
had  before  a  jury,  and  a  verdict  rendered  for  the  plaintiff.  The  de- 
fendant brings  error.  The  assignments  of  error  are  numerous,  but 
have  been  carefully  grouped  by  the  appellant's  counsel,  so  that  the 
questions  may  be  dealt  with  under  a  few  heads.  The  following  dia- 
gram will  furnish  an  aid  to  an  understanding  of  the  points  involved. 

The  record  contains  the  substance  of  all  the  testimony,  from  which 
it  appears  that  plaintiff  derived  title  from  the  heirs  of  Laurie  Mc- 
L^od,  to  whom  a  conveyance  was  made  by  Eliza  McLeod  in  1862, 
Eliza  McLeod  being  then  in  possession,  and  the  apparent  owner.  The 
defendant  claims  title  by  adverse  possession,  and  also  claims  that  by 
a  subsequent  conveyance  to  him  by  Eliza  McLeod  of  lot  No.  293  the 
title  passed  to  him,  and  in  this  connection  contends  that  the  deed  to 
Laurie  McLeod  contained  no  sufficient  description  of  any  property, 
and  that  the  record  of  a  deed  was,  therefore,  no  notice  to  him  of  any 
right  in  Laurie  McLeod. 

1.  In  the  course  of  the  trial  the  plaintiff  introduced  a  purported 
record  of  a  deed  from  one  Charles  C.  Grove  and  wife  to  Eliza  Mc- 
Leod. The  record  of  this  deed  was  objected  to  on  the  ground  that, 
although  the  deed  purported  to  have  been  executed  in  New  York, 
there  was  ho  seal  attached  to  the  certificate  of  the  clerk  of  the  court. 
The  objection  was  a  valid  one,  under  the  decision  of  this  court  in 
Pope  V.  Cutler,  34  Mich.  150.  But  the  error  was  not  prejudicial.  If 
the  deeds  in  plaintiff's  chain  of  title  contained  a  sufficient  description, 
he  showed  conveyances  from  one  in  possession  for  many  years,  and 
this  was  sufficient  to  establish  a  prima  facie  title,  which  is  disputed 
in  no  way  unless  the  defendant  has  acquired  a  title  by  adverse  pos- 
session. Gamble  v.  Horr,  40  Mich.  561 ;  Bennett  v.  Horr,  47  Mich. 
221,  10  N.  W.  347;  Van  Den  Brooks  v.  Correon,  48  Mich.  283,  12 
N.  W.  206;  Covert  v.  Morrison,  49  Mich.  133,  13  N.  W.  390;  Cook 
V.  Bertran,  86  Mich.  356,  49  N.  W.  42. 

2.  As  the  deed  to  Laurie  McLeod  was  first  recorded,  and  as  de- 
fendant claims  it  in  fact  read  when  executed,  the  description  of  the 
land  was  as  follows :  "Beginning  on  Market  street,  between  the  lot 
herein  intended  to  be  conveyed  and  a  lot  confirmed  by  the  govern- 
ment of  the  United  States  to  Ambrose  Davenport;  thence  north,  six- 
ty-two degrees  fifteen  minutes  west,  158.96  feet;  thence  south,  thirty- 
one  degrees  west,  sixty  feet;  thence  south,  sixty-two  degrees  fifteen 
minutes  west,  158.96  feet,  to  Market  street;  thence  along  said  street 
north,  twenty-seven  degrees  forty-five  minutes  east,  to  the  place  of 
beginning."  Was  this  a  sufficient  description,  or  must  the  deed  be 
treated  as  a  nullity?  The  starting  point  is  definite.  The  first  line, 
to  point  b,  is  also  certain,  as  is  the  line  between  points  b  and  c.  But, 
if  the  direction  of  the  next  line  is  followed  as  given  in  the  instrument, 
the  terminus  is  at  e,  and  the  line  named  in  the  succeeding  portion  of 
the  description  would  end  at  f.     But  the  course  given  after  reaching 


DESCRIPTION    OF  PROPERTY   CONVEYED 


613 


point  c  is  not  the  only  means  of  identification  adopted.  That  line  is 
described  as  terminating  at  Market  street.  If  we  exclude  the  words 
indicative  of  the  direction  of  the  line,  and  carry  the  line  in  the  most 
direct  course  to  Market  street,  we  not  only  have  a  line  answering 
to  the  other  terms  of  the  deed,  but  one  which,  with  its  extension,  in- 
closes something,  which  is,  by  the  terms  of  the  deed,  "a.  lot  intended 
to  be  conveyed,"  and  which,  to  answer  the  terms  of  the  portion  of 
the  description  relating  to  the  starting  point,  must  lie  next  to  "the  lot 


NORTH 


014  DEEDS    AND    THEIR    REQUISITES 

confirmed  by  the  government  to  Ambrose  R.  Davenport."  To  make 
this  clearer,  the  deed  contains  the  statement  that  from  the  terminus 
of  the  third  hne  named  in  the  description  the  boundary  shall  extend 
along  Market  street  to  the  place  of  beginning.  We  think  the  intent 
of  the  grantor  is  clear,  and  that  the  deed  is  not  a  nullity  for  want  of 
a  sufficient  description.  See  Anderson  v.  Baughman,  7  Mich.  72,  74 
Am.  Dec.  699;  Cooper  v.  Bigly,  13  Mich.  463;  Dwight  v.  Tyler,  49 
Mich.  614,  14  N.  W.  567.  A  number  of  defendant's  points  depend 
upon  this,  and  it  becomes  unnecessary  to  treat  in  detail  some  of  his 
assignments  of  error.  The  deed  being  valid  to  convey  the  land,  the 
record  was  notice  to  subsequent  purchasers. 

3.  One  of  the  conveyances  under  which  plaintiff  claims  contained 
a  description  as  follows :  "A  lot  sixty  feet  wide  on  Market  street  and 
128.90  feet  deep,  being  the  north  end  of  lot  293  in  the  village  of  Mack- 
inac." This  is  claimed  to  be  insufficient,  but  we  think  there  is  no 
mistaking  the  land  intended  to  be  conveyed. 

4.  As  above  stated,  the  defendant  interposed  the  defense  of  adverse 
possession.  In  order  to  meet  this,  plaintiff"  was  allowed  to  prove  by 
one  R.  McLeod.  in  whose  family  one  of  the  minor  heirs  of  Laurie 
McLeod  lived,  that  the  plaintiff  occupied  the  premises  under  an  agree- 
ment made  by  him  with  said  R.  McLeod  as  an  assumed  representa- 
tive of  the  minors,  to  the  effect  that  defendant  might  occupy  the  land 
in  question  in  consideration  of  his  paying  the  taxes  thereon.  Com- 
plaint is  made  of  this  on  the  ground  that  R.  McLeod  was  not  shown 
to  have  had  authority  to  act  for  the  minors.  But  we  think  this  fact 
immaterial.  If  the  defendant  in  fact  entered  into  the  possession  of 
the  lands  under  such  an  engagement  as  is  claimed,  he  did  not  enter 
in  hostility  to  the  minor  heirs,  and  for  this  purpose  the  testimony  was 
admissible.  In  the  same  connection  it  is  urged  that  the  agreement  in 
question  only  covered  the  fenced  portion  of  the  premises,  which  was 
something  less  than  the  whole,  another  portion  being  used  for  a  drive- 
way. But  while  it  is  true  that  certain  portions  of  the  testimony  might 
bear  this  construction,  we  think  there  is  no  mistaking  the  tenor  of 
the  agreement,  or  that  it  related  to  the  land  deeded  to  Laurie  McLeod. 
The  defendant's  denial  did  not  relate  to  the  question  of  quantity,  but 
was  absolute.  His  claim  was  that  he  had  no  notice  of  the  conveyance 
to  Laurie  McLeod,  and  occupied  the  whole  of  the  land  in  question 
in  hostility  to  plaintiff's  grantors,  while  plaintiff's  theory  was  that  he 
had  notice  of  this  adverse  right,  and  occupied  in  subordination  to 
their  title.     The  two  theories  were  fairly  submitted  to  the  jury. 

5.  The  court  permitted  an  amendment  on  the  trial,  narrowing  the 
plaintift''s  claim.  This  could  not  have  prejudiced  the  defendant,  and 
was  proper.  Bringhurst  v.  Railroad  Co.,  78  Mich.  572,  44  N,  W. 
414.  We  think  no  error  to  the  prejudice  of  defendant  was  commit- 
ted.   The  judgment  will  be  affirmed,  with  costs,  and  the  case  remanded. 

Long,  J.,  did  not  sit.    The  other  justices  concurred. 


DESCRIPTION    or    PROPERTY    CONVEYED  615 


DODD  V.  WITT. 

(Supreme  Judicial  Court  of  Massachusetts,  1SS5.     139  Mass.  6'S,  29  N.  E.  475, 

52  Am.  Rep.  700.) 

Report  from  superior  court,  Berkshire  county ;   Gardner,  Judge. 

Writ  of  entry  by  Daniel  Dodd  against  Ivory  Witt  and  others.  Ver- 
dict directed  for  plaintiff,  and  case  reported  to  the  supreme  court 
for  determination.     New  trial  ordered. 

Field,  J.  The  demanded  premises  are  a  strip  two  rods  wide  on 
the  westerly  end  of  the  lot  described  in  the  demandant's  deed.  The 
demandant  derives  title  from  Reuben  Whitman,  who  in  May,  1866, 
conveyed  the  premises  to  Thomas  H.  Lidford  by  a  description  as  fol- 
lows :  "Commencing  on  the  road  at  the  south-east  corner  of  the  land 
that  I  gave  D.  H.  Raymond  a  bond  to  convey;  thence  west  22  deg. 
30  min.  N.,  ten  rods;  thence  south,  22  degrees  30  minutes  west,  four 
rods;  thence  east,  22  degrees  30  minutes  S.,  ten  rods;  thence  south 
on  the  road  to  the  place  of  beginning."  The  descriptions  in  the  mesne 
conveyances  are  substantially  the  same.  The  road  was  four  rods 
wide,  and  Reuben  Whitman,  when  he  executed  his  deed,  owned  the 
Tee  of  it.  The  deed  therefore  conveyed  the  land  to  the  center  line 
^  the  highway.  Peck  v.  Denniston,  121  Mass.  17;  O'Connell  v. 
Bryant,  Id.  557. 

The  tenants  contended  that  by  the  construction  of  the  deed  the 
side  lines  of  the  demanded  premises  extended  ten  rods  from  the  cen- 
ter line  of  the  highway,  or  eight  rods  from  the  westerly  side  of  the 
highway ;  or,  if  this  were  not  the  true  construction,  that  there  was 
an  ambiguity  in  the  description;  and  they  offered  "John  Lidford, 
father  of  said  Thomas  H.  Lidford,  as  a  witness  to  prove  that  at  the 
time  of  the  execution  of  the  above  mentioned  deed  from  Reuben 
Whitman  to  Thomas  H.  Lidford,  the  said  witness  was  present;  and 
that  said  Whitman  measured  on  the  west  line  of  the  road  above  men- 
tioned westerly  eight  rods,  and  fixed  a  monument  at  the  north-west 
corner  of  the  lot;  thence  southerly  four  rods  to  the  south-west  cor- 
ner, and  fixed  a  monument;  thence  southerly  eight  rods  to  the  west 
side  of  the  highway;  thence  on  the  highway  to  the  place  of  begin- 
ning. That  his  son  Thomas  H.  Lidford  and  himself  built  a  fence 
across  the  west  end  of  said  lot  from  corner  to  corner,  as  indicated 
by  the  monuments  thus  erected,  at  the  time  of  said  deed  to  Lidford, 
which  fence  remained  until  after  the  demandant  went  into  possession 
under  his  deed.  That  the  land  included  within  said  measurement  was 
all  that  Thomas  H.  Lidford  purchased,  as  he  understood  it  at  the  time, 
except  that  he  wa3  cold  by  Whitman  that  his  grant  really  extended 
to  the  center  hi  the  highway,  which  he  was  told  was  four  rods  wide." 
Xhe  e-purt  excluded  this  testimony,  and  ruled  "that  there  was  no  am- 
biguity in  the  deeds  offered  by  the  plaintiff ;  that  the  monument  called 


616  DEEDS    AND   THEIR    REQUISITES  > 

tor  'on  the  road'  was  by  the  side  of  the  road,  and  not  the  center  of 
the  road ;"  and  directed  the  jury  to  render  a  verdict  for  the  demand- 
ant. This  is  a  ruhng  that,  by  the  construction  of  the  deed,  the  lines 
extended  10  rods  from  the  westerly  side  of  the  road. 

In  Peck  V.  Denniston,  supra,  Chief  Justice  Gray  says:  "The  gen- 
eral rule  is  well  settled  that  a  boundary  on  a  way,  public  or  private, 
includes  the  soil  to  the  center  of  the  way,  if  owned  by  the  grantor; 
and  that  the  way,  thus  referred  to  and  understood,  is  a  monument 
which  controls  courses  and  distances,  unless  the  deed  by  explicit 
statement  or  necessary  implication  requires  a  different  construction. 
Newhall  v.  Ireson,  8  Cush.  595,  54  Am.  Dec.  790;  Fisher  v.  Smith, 
9  Gray,  441;  Boston  v.  Richardson,  13  Allen,  146;  White  v.  Godfrey, 
97  Mass.  472;  Motley  v.  Sargent,  119  Mass.  231."  Not  one  of  these 
cases,  however,  considers  the  construction  to  be  given  to  a  deed  in 
which  a  highway  is  a  point  of  departure  for  a  measured  line.  In 
Newhall  v.  Ireson,  supra,  the  line  was  "running  northerly  seven  poles 
to  the  county  road,  and  from  thence,  upon  the  road,  twenty-two  poles, 
to  the  first-mentioned  bound."  The  seven  rods  terminated  on  the  north 
at  an  old  wall,  which  formerly  constituted  the  southerly  boundary  of 
the  road.  The  court  held  that  the  line  ran  to  the  center  of  the  road, 
although  this  was  more  than  seven  rods.  The  rule  is  stated  in  Motley 
V.  Sargent,  supra,  as  follows :  "It  is  a  general  rule  of  construction 
that,  where  there  is  a  boundary  upon  a  fixed  monument  which  has 
width,  as  a  way,  stream,  or  wall,  even  if  the  measurements  run  only 
to  the  side  of  it,  the  title  to  the  land  conveyed  passes  to  the  line  which 
would  be  indicated  by  the  middle  of  the  monument." 

The  rule  is  then  well  established  when  the  road  is  the  terminus  ad 
quem,  but  there  is  little  authority  when  it  is  the  terminus  a  quo,  and 
llTere  is  no  monument  at  the  other  end  of  the  line.  A  majority  of 
the  court  is  of  opinion  that  it  is  a  common  method  of  measurement 
in  the  country,  where  the  boundary  is  a  stream  or  way,  to  measure 
from  the  bank  of  the  stream  or  the  side  of  the  way;  and  that  there 
is  a  reasonable  presumption  that  the  measurements  were  made  in 
this  way,  unless  something  appears  affirmatively  in  the  deed  to  show 
that  they  began  at  the  center  line  of  the  stream  or  way.  The  ruling 
of  the  court,  in  the  construction  of  the  deed,  was  therefore  prima 
facie  correct,  as  there  was  no  monument  to  determine  the  other  end 
jof  the  line.  But  this  presumption  can  be  controlled  by  evidence  that 
the  parties  at  the  time  of  the  conveyance  established  monuments  of  the 
boundaries.  Without  determining  whether,  in  this  case,  there  can  be 
said  to  be  a  latent  ambiguity  in  the  deed,  (see  Hoar  v.  Goulding,  116 
Mass.  132,)  or  merely  an  indefiniteness  in  the  description,  we  are  of 
opinion  that  the  acts  of  the  parties,  contemporaneous  with  the  de- 
livery of  the  deed,  in  fixing  the  monuments,  and  the  subsequent  fenc- 
ing of  the  lot  and  the  occupation  in  accordance  therewith,  are  admis- 
sible in  evidence  upon  the  construction  to  be  given  to  the  deed.    Blaney 


DESCRIPTION    OF   PROPERTY    CONVEYED  617 

V.  Rice,  20  Pick.  62,  32  Am.  Dec.  204 ;   Stewart  v.  Patrick,  68  N.  Y. 
450;   Hamm  v.  San  Francisco,  17  Fed.  119. 
New  trial. 


KAISER  V.  DAIvTO. 

(Supreme  Court  of  California,  1903.     140  Cal.  167,  73  Pac.  828.) 

Commissioners'  Decision.  Department  1.  Appeal  from  Superior 
Court,  City  and  County  of  San  Francisco;   George  H.  Bahrs,  Judge. 

Action  by  Joseph  Kaiser  against  Luigi  Dalto  and  wife.  From  an 
order  denying  a  motion  for  a  new  trial,  defendants  appeal.    Affirmed. 

Cooper,  C.^  This  action  was  brought  to  enjoin  defendants  from 
entering  upon  a  strip  of  land  alleged  to  belong  to  plaintiff  along  the 
north  side  of  his  lot,  46  feet  and  6  inches  long  and  5%  inches  wide, 
and  from  building  a  wall  and  committing  other  trespasses  thereon. 
The  case  was  tried  before  the  court,  findings  filed,  and  judgment  en- 
tered for  plaintiff  granting  the  injunction  as  prayed.  Defendants  have 
not  appealed  from  the  judgment.  They  made  a  motion  for  a  mew 
trial,  which  was  denied,  and  this  appeal  is  from  the  order  denying  the 
motion.     *     *     * 

Defendants  claim  that  the  evidence  is  insufficient  to  support  the- 
finding  that  the  title  to  the  strip  of  land  is  in  plaintiff.  We  have  care- 
fully examined  the  evidence,  and  find  it  sufficient  to  support  the  find- 
ing. One  Sanborn,  a  deputy  in  the  city  and  county  surveyor's  office 
testified  from  the  official  record  made  by  the  city  and  county  surveyor 
in  March,  1868.  This  record  was  received  in  evidence  without  objec- 
tion. The  witness  said  that  it  showed  the  monumental  lines  from  which 
Green  street  was  established,  and  that  the  strip  of  land  was  on  plain- 
tiff's side  of  the  Hne  by  this  survey.  One  Munch,  a  surveyor,  testi- 
fied that  he  made  a  survey  of  the  plaintiff's  lot  November  3,  1895 ; 
that  in  making  the  survey  he  took  the  first  survey  on  record  in  the 
city  and  county  surveyor's  office ;  that  "in  making  an  examination  of 
those  lines  I  found  the  original  marks  made  in  1873,  according  to  the 
diagram  in  the  city  and  county  surveyor's  office,  on  the  premises  out 
in  the  fence  in  the  rear,  and  in  the  front.  I  found  them  covered  up 
by  a  board,  and  I  knocked  the  board  off,  and  I  verified  my  own  con- 
clusions from  the  marks."  The  witness  further  testified  that  the  land 
in  contest  was  on  plaintiff's  side  of  the  line  according  to  his  survey. 

One  Gibbs,  a  civil  engineer  and  surveyor,  testified  in  substance  to 
the  same  effect  as  did  Munch.  He  said  "the  north  line  of  Kaiser's  lot 
is  a  continuation  of  the  fifty-vara  line,  and  is  the  dividing  line  of  the 
fifty-vara  lot."  One  Kohier  testified  that  he  owns  considerable  prop- 
erty on  Reed  place  and  in  the  immediate  vicinity;  that  he  owns  the 
50-vara  lot  on  the  east  of  plaintiff's  lot;   that  there  is  an  old  build- 

5  Part  of  the  opinion  is  omitted. 


618  DEEDS    AND    THEIR    REQUISITES 

ing  there,  which  was  erected  in  1866  or  1867,  and  he  saw  the  old 
survey  marks  on  the  building;  that  the  old  house  has  been  on  the  line 
ever  since  it  was  built,  and  has  always  been  considered  correct;  that 
the  line  is  the  same  as  made  in  1868,  and  divides  the  50-vara  lot  in 
half;  that  the  strip  of  land  is  on  plaintiff's  side  of  the  line.  One 
Irons,  who  formerly  owned  the  lot  now  owned  by  defendants,  testi- 
fied that  he  owned  it  for  about  10  years,  and  sold  it  in  1888;  that 
while  he  was  the  owner  of  the  lot  now  owned  by  defendants  and  plain- 
tiff was  the  owner  of  the  lot  on  the  south,  they  put  up  a  bulkhead  with 
a  fence  between  their  property  on  the  westerly  end  from  the  front  of 
Irons'  house  to  Reed  place;  that  this  bulkhead  was  built  direct  in 
line  with  the  fence  in  the  rear;  that  this  line  was  agreed  upon  be- 
tween plaintiff  and  witness  "as  being  the  true  dividing  line  between 
the  two  lots."  Plaintiff  testified  to  this  agreement  with  Irons,  and  that 
the  strip  of  land  was  within  his  boundaries  as  per  the  agreed  line. 
There  is  other  testimony  to  the  same  effect,  but  the  above  is  sufficient. 

The  testimony  of  surveyors  on  the  part  of  defendants  was  sharply 
in  conflict  with  the  above  as  to  the  division  line  by  a  survey  by  courses 
and  distances.  The  defendants'  surveyors  took  the  monumental  line 
of  Green  street  as  they  located  it.  They  found  an  original  line  monu- 
ment at  a  point  on  Union  street  near  Hyde,  thence  from  the  line  of 
Union  street  across  the  block  to  Green  street,  a  distance  of  275  feet, 
thence  68  feet  across  Green  street,  and  thence  68  feet  and  9  inches 
to  the  line  of  defendant's  lot.  These  surveys  may  have  been  correct 
by  courses  and  distances,  but  in  the  course  of  30  or  40  years  'a  change 
in  the  position  of  the  monuments  or  the  surface  of  the  earth  might 
easily  cause  a  variation  of  4  or  5  inches.  The  lines  as  originally  lo- 
cated must  govern  in  such  cases.  The  survey  as  made  in  the  field, 
and  the  lines  as  actually  run  on  the  surface  of  the  earth  at  the  time 
the  blocks  were  surveyed  and  the  plats  filed,  must  control.  The  par- 
ties who  own  the  property  have  a  right  to  rely  upon  such  lines  and 
monuments.  They  must,  when  established,  control  courses  and  dis- 
tances. A  line,  as  shown  by  monuments  and  as  platted  by  the  city 
authorities,  and  as  acquiesced  in  for  many  years,  cannot  be  overturned 
by  measurements  alone. 

We  advise  that  the  order  be  affirmed. 

We  concur:    Haynes,  C.;    Smith,  C. 

For  the  reasons  given  in  the  foregoing  opinion,  the  order  appealed 
from  is  affirmed:     Shaw,  J.;    Van  Dyke,  J.;    Angellotti,  J. 


THE   HABENDUM,  TENENDUM,  AND   CONCLUSION  619 


IV.  The  Habendum,  Tenendum,  and  Conclusion  " 


HUGHES  V.  HAMMOND. 

•ICourt  of  Appeals  of  Kentucky,  1910.     13b  Ky.  694,  125  S.  W.  144,  26  L.  E.  A. 

[N.  S.]  808.) 

Appeal  from  circuit  court,  Henry  county. 

"To  be  officially  reported." 

Suit  by  Mary  S.  Hammond  against  Lawrence  Hughes  for  specific 
performance  of  a  contract  for  the  sale  of  land.,  Judgment  for  com- 
plainant, and  defendant  appeals.     Affirmed. 

NuNN,  C.  J.  Appellant  purchased  from  appellee  42  and  a  fraction 
acres  of  land  at  the  price  of  $100  an  acre,  and  agreed  ta  make  the 
first  payment  upon  a  day  named,  upon  the  tender  of  a  deed  by  appel- 
lee conveying  to  him  a  good  title  of  general  warranty.  Appellee  ten- 
dered him  a  deed  upon  the  day  agreed  upon  and  demanded  the  first 
payment,  which  appellant  declined  to  make  upon  the  ground  that  the 
deed  did  not  convey  to  him  a  good  title,  and  appellee  then  instituted 
this  action  to  compel  him  to  perform  his  part  of  the  contract  which 
was  in  writing.  Appellant  answered  the  petition,  and  set  forth  the 
conveyance  from  appellee's  father  and  mother  to  her  for  the  land, 
which  he  claimed  conveyed  to  her  the  fee,  subject  to  be  defeated  by  her 
dying  without  children.  He  also  alleged  that  appellee's  husband  died 
after  the  conveyance  from  her  mother  and  father  to  her,  and  that  she 
now  has  two  children  who  reside  with  her.  A  demurrer  was  sustained 
to  this  answer,  and  it  was  adjudged  by  the  lower  court  that  appellant 
accept  the  deed  and  make  the  payments  as  per  the  contract. 

The  conve)^ance  executed  by  appellee's  father  and  mother  to  her 
is  as  follows:  "This  indenture,  made  this  14th  day  of  April,  1891, 
between  I.  M.  Johnston  and  Annie  Johnston,  his  wife,  of  the  first 
part,  Mary  S.  Hammond,  his  daughter,  of  the  second  part,  both  of  the 
county  of  Henry  and  state  of  Kentucky,  witnesseth  that  for  the  con- 
sideration of  one  dollar  in  hand  paid  the  receipt  of  which  is  hereby 
acknowledged,  and  for  the  further  consideration  of  love  and  affection, 
and  for  the  still  further  consideration  of  $2,000,  to  be  taken  from  the 
interest  that  the  party  of  the  second  part  has  in  the  estate  of  the  party 
of  the  first  part  at  his  death,  the  party  of  the  first  part  hereby  conveys 
to  the  party  of  the  second  part,  for  own  use,  free  from  all  marital 
rights  of  her  present  or  any  future  husband  she  may  have,  a  certain 
tract  of  land  lying  in  Henry  county,  Ky.,  described  as  follows:  [Here 
follows  description.]  To  have  and  to  hold  said  land  to  the  party  of 
the  second  part,  her  heirs  and  assigns,  forever,  with  covenant  of  gen- 

6  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  2S5. 


G20  DEEDS    AND    THEIR    REQUISITES 

eral  warranty.  If  the  party  of  the  second  part  dies  without  bodily 
heirs,  said  land  is  to  go  back  to  the  heirs  of  the  first  party." 

The  question  to  be  determined  is :  What  kind  of  a  title  did  appellee 
receive  under  this  conveyance?  Appellee  contends,  and  the  lower 
court  so  adjudged,  that  it  gave  her  a  fee-simple  title,  but  appellant  in- 
sists that  it  does  not.  Ifi  is  and  should  be  the  object  of  the  court,  in 
all  cases  where  a  deed  or  will  is  to  be  construed,  to  arrive  at  the 
intention  of  the  parties  to  the  conveyance  and  the  testator.  It  will  be 
observed  that  the  only  person  named  as  the  second  party  in  the  cap- 
tion, granting,  and  habendum  clauses  in  the  deed,  is  appellee,  except 
the  habendum  clause  closes  as  follows :  "If  the  party  of  the  second 
part  dies  without  bodily  heirs,  said  land  is  to  go  back  to  the  heirs  of 
the  first  party."  And  it  was  these  words  that  produced  the  doubt  in 
appellant's  mind  as  to  the  ability  of  appellee  to  convey  him  a  good 
title.  It  has  been  established  as  a  general  rule  that  the  granting 
tlause  in  a  deed  controls,  and  if  there  is  anything  in  the  habendum 
clause  that  conflicts  with  it  that  part  of  the  habendum  clause  must  give 
way.  As  stated,  appellee  is  the  only  person  named  as  grantee  in  the 
caption  of  the  deed;  and  the  granting  clause  conveyed  it  to  her  with- 
out any  restrictions,  and  by  the  habendum  clause  the  land  is  conveyed 
fo  "her  and  her  heirs  and  assigns,  forever,  with  covenant  of  general 
ivarranty."  This,  undoubtedly,  gave  her  the  fee-simple  title  to  the 
iand,  and  the  last  words  of  the  habendum  clause,  above  quoted,  are 
simply  an  attempt  to  limit  her  estate. 

In  the  case  of  Ray  v.  Spears'  Ex'r,  etc.,  64  S.  W.  413,  23  Ky.  Law 
Rep.  814,  this  court,  in  construing  a  conveyance  very  similar  to  the  one 
at  bar,  said :  "It  is  well  settled  that  the  granting  clause  in  a  deed  must 
prevail  over  the  habendum,  unless  a  contrary  intention  is  shown  by 
the  deed.  In  this  case  both  the  granting  and  habendum  clauses  of  the 
deed  convey  the  fee  forever,  in  as  strong  language  as  could  be  used, 
and  after  certain  other  property  is  conveyed,  the  addition  to  or  con- 
dition is  added,  which,  it  is  claimed,  is  a  limitation,  or  which  converts 
the  title  into  a  defeasible  fee.  It  seems  to  us  that  the  attempt  to  so 
limit  the  absolute  grant  is  null  and  void,  because  utterly  inconsistent 
with  both  the  granting  and  habendum  clauses  of  the  conveyance." 

Under  the  deed  from  appellee's  father  and  mother,  she  was  clear- 
ly given  the  right  and  power  to  convey  this  land,  for  it  was  recited 
in  the  conveyance  that  she  was  "to  have  and  to  hold  said  land  to  the 
party  of  the  second  part,  her  heirs  and  assigns,  forever,"  which  dele- 
gated to  her  the  power  to  convey.  Therefore,  if  we  are  mistaken  with 
reference  to  the  last  clause  of  the  habendum  being  rendered  nugatory 
by  the  granting  clause,  her  conveyance  to  appellant  would  pass  the 
title  by  reason  of  this  expressed  power  authorizing  her  to  convey 
embodied  in  the  conveyance.  This  court  also  said,  in  the  case  before 
cited,  that  "even  if  this  conclusion  is  not  tenable,  and  if  any  effect 
must  be  given  at  all  to  the  conditions  in  question,  it  is  clear  that  the 
grantor  intended  to  invest  the  grantee  with  the  power  to  sell  and  con- 


THE    HABENDUM,  TENENDUM,  AND   CONCLUSION  621 

vey  the  land,  and,  if  he  did  so,  its  proceeds. in  the  contingency  provided 
for  should  vest  in  the  grantor  or  his  heirs,  and,  this  being  true,  the 
grantee  thereby  became  invested  with  fee,  and  with  full  power  to  con- 
vey a  fee-simple  title." 

If  the  clause  referred  to  is  not  invalid  by  reason  of  its  conflict  with 
the  granting  clause,  still  appellee,  in  our  opinion,  under  the  convey- 
ance, has  the  right  and  power  to  convey  a  good  and  perfect  title,  and 
tjbe.  heirs  of  appellee's  father  and  mother  must  look  to  the  proceeds 
derived  from  the  sale  of  the  land  by  appellee,  and  see  that  it  reverts 
to^hem,  instead  of  the  42  and  a  fraction  acres  of  land,  in  case  appel- 
lee dies  without  leaving  children.  This  construction  is  clearly  author- 
ized by  the  terms  of  the  conveyance.  See,  also,  the  case  of  Clay,  etc., 
V.  Chenault,  etc.,  108  Ky.  17,  55  S.  W.  729,  21  Ky.  Law  Rep.  1485, 
and  the  many  authorities  therein  cited. 

For  these  reasons,  the  judgment  of  the  lower  court  is  affirmed.'^ 


BLAIR  v.  MUSE. 

(Supreme  Court  of  Appeals  of  Virginia,  1887.    S3  Va.  238,  2  S,  E.  31.) 

Appeal  from  circuit  court,  Pittsylvania  county. 

Richardson,  J.  This  was  a  suit  in  equity  in  the  circuit  court  of 
Pittsylvania  county.  The  case  lies  within  a  narrow  compass,  and  may 
be  briefly  disposed  of.  The  object  of  the  bill  was  to  enforce  the  lien 
of  a  judgment,  and  execution  thereon,  in  favor  of  the  complainant 
for  $537.23,  with  interest  and  costs,  obtained  in  the  said  court  against 
one  A.  L.  H.  Muse  on  the  fifth  of  September,  1876.  The  bill  sets 
forth  that  on  the  fourth  of  October,  1847,  the  said  Muse  conveyed 
to  his  wife,  Mary  Ann  Muse,  and  their  children,  Dorothy  S.,  Frances 
Ann,  and  Rufus  Muse  certain  personalty,  and  also  a  tract  of  land  sit- 
uate in  the  said  county,  containing  246  acres;  that  afterwards,  some 
time  in  the  year  1874,  the  said  Frances  Ann  died  intestate,  unmar- 
ried, and  without  issue ;  and  that  her  father,  the  said  A.  L.  H.  Muse, 
became  her  sole  heir  and  distributee;  that  afterwards,  and  after  the 
rendition  of  the  said  judgment,  and  its  entry  on  the  judgment  lien 
docket  of  the  said  county,  to-wit,  on  the  tenth  day  of  January,  1881, 
the  said  A.  L.  H.  Muse  and  Mary  A.,  his  wife,  conveyed  the  estate, 
real  and  personal,  so  inherited  from  the  said  Frances  Ann  Muse,  de- 
ceased, to  their  said  daughter,  Dorothy  S.,  then  the  wife  of  C.  L. 
Carter,  claiming  the  right  to  make  such  conveyance  by  virtue  of  the 
deed  from  the  said  A.  L.  H.  Muse  to  his  wife  and  children  as  afore- 
said. The  bill  also  charges  that  the  deed  to  Mrs.  Carter  was  made 
without  authority  of  law,  and  is  on  its  face  fraudulent  and  Moid. 

7  See,  also,  in  accord,  as  to  the  controlling  effect  of  the  granting  clause 
over  the  habendum.  Major  v.  Bukley,  51  Mo.  227  (1873).  The  habendum, 
moreover,  cannot  be  made  to  include  lands  not  in  the  description.  Manning  v. 
Smith,  6  Conn.  289  (1826). 


G22  DEEDS    AND    THEIR    REQUISITES 

The  principal  question  in  the  case  turns  upon  the  true  construc- 
tion of  the  deed  of  the  fourth  of  October,  1847.  In  other  words,  the 
question  is  whether  Frances  Ann  Muse  took  an  interest  in  the  prop- 
erty conveyed  by  that  deed,  which  at  her  death  passed  to  her  father, 
the  said  A.  L.  H.  Muse,  under  our  statute  of  descents  and  distribu- 
tions. The  deed  conveys,  with  general  warranty,  all  the  right,  title, 
and  interest  of  the  grantor  in  and  to  the  property,  real  and  personal, 
described  in  the  deed,  unto  the  said  Mary  Ann  Aluse,  Frances  Ann 
Muse,  Dorothy  S.  jNIuse,  and  Rufus  Muse,  their  executors,  admin- 
istrators, and  assigns,  forever;  and  then  follow  what  in  the  deed  are 
called  "the  following  exceptions  and  reservations,"  to-wit:  "I  re- 
serve to  my  wife,  the  said  Mary  Ann,  the  power,  right,  and  privilege 
to  sell  and  convey,  at  any  time,  at  her  own  pleasure,  any  part  or  the 
whole  of  the  aforesaid  land  and  premises,"  etc.,  "and  her  conveyance  in 
such  case  shall  be  lawful  and  good,  to  the  purchaser  of  the  same,"  etc. 

This  latter  clause  in  the  deed  is  manifestly  void  and  inoperative 
for  several  reasons.  In  the  first  place,  it  is  irreconcilably  repugnant 
to  the  preceding  clause,  the  effect  of  which  is  to  convey  the  property 
described  in  the  deed  to  the  four  grantees  absolutely  and  in  fee-simple, 
and  one  of  the  essential  incidents  of  a  fee-simple  estate  is  the  un- 
limited power  of  alienation.  Hence  the  grantor  having  conveyed  the 
property  absolutely  to  the  four,  the  subsequent  clause  giving  tojhg 
wife  the  power  to  dispose  of  the  whole  estate  conveyed,  at  her  pleas- 
ure, is  invalid ;  for  the  rule  is  that,  where  two  clauses  in  a  deed  are 
repugnant,  the  first  shall  prevail. 

The  case  of  Humphrey  v.  Foster,  13  Grat.  653,  is  not  in  conflict  with 
this  view.  That  case  simply  decided  that  under  the  statute  then  in 
force,  and  which  applies  to  the  deed  in  question,  the  whole  deed 
should  be  looked  to  in  order  to  ascertain  the  intention  of  the  grantor, 
and  consequently  what  estate  was  intended  to  be  granted.  But  that 
is  not  the  question  before  us.  Here  there  are  two  utterly  irreconcila- 
ble clauses  in  the  deed,  each  expressed  in  clear  and  unmistakable  lan- 
guage, which  unquestionably  brings  the  case  within  the  rule  above 
stated. 

Nor  is  the  clause  in  question  valid  as  an  exception ;  for  an  excep- 
tion relates  only  to  a  thing  that  is  severable  from  the  thing  granted, 
and  not  to  an  inseparable  incident.  Therefore,  where  a  deed,  as  in 
this  case,  conveys  property  in  fee-simple,  and  restrains  the  power  of 
alienation,  the  latter  provision  is  void,  because,  as  we  have  seen,  the 
power  of  alienation  is  ordinarily  an  inseparable  incident  of  a  fee- 
simple  estate.  2  ]\Iinor,  Inst.  (1st  Ed.)  76.  And  it  is  equally  clear 
that  the  claus?  in  question  is  not  good  as  a  reservation.  A  reserva- 
tion applies  to  a  thing  not  in  esse  at  the  time  of  the  grant,  but  newly 
created,  and  which  is  reserved  for  the  benefit  of  the  grantor;  as,  for 
example,  the  reservation  of  a  right  of  way  over  the  estate  conveyed, 
which,  tliougli  it  may  have  been  previously  enjoyed  by  the  grantor  as 
the  owner  of  the  estate,  becomes  a  new  right.    It  is  needless,  therefore, 


THE    HABENDUM,  TENENDUM,  AND    CONCLUSION  G23 

to  say  that  the  so-called  reservation  of  the  exclusive  power  of  aliena- 
tion on  the  part  of  the  wife  of  the  grantor  in  the  deed  under  con- 
sideration is  void. 

We  are  therefore  of  opinion  that  the  said  Frances  Ann  Muse  took 
an  undivided  one-fourth  interest  absolutely  and  in  fee-simple  in  the 
property  conveyed  by  the  deed  of  October  4,  1847,  which  passed  at 
her  death  to  the  said  A.  L.  H.  Muse  as  her  sole  heir  and  distributee, 
and  that  the  decree  of  the  circuit  court  dismissing  the  bill  is  errone- 
ous. It  only  remains  to  say  that,  inasmuch  as  the  single  object  of  the 
bill  is  to  subject  the  said  undivided  interest  to  the  lien  of  the  appel- 
lant's judgment  and  execution,  it  was  not  necessary  to  make  the  said 
Rufus  Muse  a  party  to  the  suit,  and  the  demurrer  to  the  bill  ought 
therefore  to  have  been  overruled. 

The  decree  of  the  said  circuit  court  must  be  reversed  and  annulled, 

and  a  decree  entered  here  in  conformity  with  the  views  hereinbefore 

expressed.^ 

« 

t 
8  The  following  note  is  appending  to  this  case  in  the  Southeastern  Reporter: 

"Where  two  clauses  of  a  deed  are  inconsistent,  the  first  clause  will  prevail. 
Green  Bay  &  Mississippi  Canal  Co.  v.  Hewitt,  55  Wis.  96,  12  N.  W.  3S2,  42 
Am.  Rep.  701  (1SS2),  where  M.,  being  absolute  owner  of  certain  land,  quit- 
claimed all  his  claim,  right,  title,  and  interest,  of  any  name  and  nature,  legal 
or  equitable,  in  and  to  said  land.  A  subsequent  clause  declared  that  'the 
interest  and  title  intended  to  be  conveyed  by  this  deed  is  only  that  acquired 
by  said  M.  by  virtue  of  a  certain  described  deed  previously  executed  to  him 
and  which  it  was  assumed  conveyed  to  him  only  an  undivided  half  of  the  land. 
It  was  held  that  the  two  clauses  were  inconsistent ;  that  the  first  clause  must 
prevail ;  and  that  M.'s  whole  interest  passed  by  the  deed.  But  a  deed  from 
the  state  land  agent,  under  the  Maine  act  of  1S32,  (chapter  30,)  and  contain- 
ing a  stipulation  that,  when  the  purchase  money  is  paid,  'then  this  is  to  be  a 
good  and  suflicient  deed  to  convey  said  lots,  otherwise  to  be  null  and  void,  and 
said  lots  to  be  and  remain  the  property  of  said  state,'  does  not  convey  the  le- 
gal title  to  the  grantee,  but  such  title  remains  in  the  state  till  payment,  Strat- 
ton  V.  Cole,  78  Me.  553.  7  Atl.  472  (1887) ;  and  words  which  are  added  in  the 
latter  part  of  a  deed,  for  the  sake  of  greater  certainty,  may  be  resorted  to  to 
explain  preceding  parts  which  are  not  entirely  clear.  Wallace  v.  Crow  (Tex.) 
1  S.  W.  372  (1886).  In  descriptions  of  lands  in  deeds,  that  which  is  false  or 
repugnant  will  be  rejected  to  effectuate  the  intention  of  the  grantor.  Holston 
v.  Needles,  115  111.  461,  5  N.  E.  530  (18S6),  where,  in  the  description  in  a  deed, 
the  words  'and  thence,'  used  in  locating  a  point  on  a  line,  being  meaningless  in 
the  connection  in  which  they  stood,  and  by  transposition  becoming  repugnant 
to  the  plain  intent  of  the  grantor,  were  rejected.  Where  the  deed  conveys,  in 
general  terms,  the  whole  of  a  tract  of  land,  with  the  exception  of  certain  land 
described  in  another  deed  between  the  parties,  such  exception  is  not  repugnant 
to  the  terms  of  the  general  grant,  and  is  valid.  Koenigheim  v.  Miles,  67  Tex. 
113,  2  S.  W.  81  (1886).  And  where  a  deed  contained  the  reservation  'excepting 
and  reserving  all  an-d  all  manner  of  metals  and  minerals,  substances,  coals,  ores, 
fossils,  and  also  all  manner  of  compositions,  combinations,  and  compounds,  of 
any  or  all  of  the  foregoing  substances,  and  also  all  valuable  earths,  clays, 
stones,  paints,  and  substances,  and  substances  for  the  manufacture  of  paints, 
upon  or  under  the  said  tract  of  land.'  the  court  refused  to  interpret  the  reser- 
vation literally,  which  would  make  it  a  reservation  of  all  that  the  deed  con- 
veyed and  therefore  void,  as  being  repugnant,  but  construed  it,  according  to 
the  intent  of  the  parties,  which  was  that  the  ordinary  glebe,  timber,  and  wa- 
ters, were  not  intended  by  the  reservation,  and  therefore  passed  unaffected  by 


624  DEEDS   AND   THEIR    REQUISITES 

V.  Delivery  and  Acceptance  of  Deeds  • 
1.  In  Generai, 


MILLER  et  al.  v.  MEERS  et  al. 

(Supreme  Court  of  Illinois,  1S95.    155  111.  284,  40  N.  E.  577.) 

Error  to  circuit  court,  Will  county;    Dorrance  Dibell,  Judge. 

Plaintiffs  in  error,  the  seven  children  of  William  P.  Bissell,  filed 
their  bill  in  equity  in  the  circuit  court  of  Will  county  against  defend- 
ants in  error,  as  executors  and  trustees  under  the  last  will  of  Martin 
C.  Bissell,  deceased,  and  against  William  Grinton  and  others,  to  com- 
pel the  delivery  to  complainants  of  a  deed  executed  to  them  by  said 
Martin,  in  his  lifetime,  for  certain  real  estate  situated  in  Joliet.  called 
the  "Bissell  Hotel  Property,"  and  to  confirm  arfd  establish  the  title  to 
said  property  in  said  plaintiffs.  William  P.  Bissell,  also,  was  made 
defendant  to  the  bill.  The  executors  filed  a  cross  bill  to  compel  the 
cancellation  and  delivery  to  them  of  said  deed,  and  also  of  a  life  lease 
executed  at  the  same  time  by  said  Martin  to  said  William  P.  Bissell 
and  wife.  Issues  were  made  on  the  bill  and  cross  bill,  and  on  a  hear- 
ing the  circuit  court  decreed  that  the  bill  be  dismissed,  and  that  the 
relief  prayed  by  the  cross  bill  be  granted,  and  that  the  complainants 
pay  the  costs.  This  writ  of  error  is  brought  by  the  complainants  to 
reverse  that  decree. 

The  principal  facts  set  up  in  the  pleadings  and  established  by  the 
proofs  are,  in  substance,  as  follows: 

Martin  C.  Bissell,  the  owner  of  the  property  in  question,  resided 
in  Joliet,  and  was  a  man  of  considerable  wealth.  His  wife  was  liv- 
ing, but  they  had  no  children.  He  had  permitted  his  brother  William 
P.  Bissell,  the  father  of  plaintiffs  in  error,  who  was  possessed  of  small 
means,  to  occupy  and  run  the  hotel  property  for  a  number  of  years 
upon  terms  disclosed  only  by  the  testimony  of  said  William,  held  by 
the  court  to  be  incompetent.  The  evidence  does  not,  however,  dis- 
close that  William  had  ever  paid,  or  agreed  to  pay,  any  rent.  In 
1875,  while  William,  with  his  wife  and  three  minor  children,  were 
thus  occupying  the  property,  his  adult  children  having  establishetl 
themselves  in  other  parts  of  the  country,  Martin  and  his  wife  ex- 
ecuted and  acknowledged  a  warranty  deed  of  the  hotel  property  to 
plaintiffs  in  error,  naming  them,  and  as  the  children  of  said  William, 

it.  Foster  v.  Runk,  109  Pa.  291,  2  Atl.  25  (1SS5).  When  a  reservation  is  made 
in  a  deed,  it  is  not  necessary,  in  order  to  cive  it  effect,  that  the  grrantor  should, 
when  he  executes  the  deed,  assert  verbally  his  right  to  the  property  excepted 
from  the  conveyance.  Hornbuckle  v.  Stafford,  111  U.  S.  389,  4  Sup.  Ct.  515, 
28  L.  Ed.  4G8  (1884)." 

8  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  289. 


DELIVERY  AND  ACCEPTANCE  OF  DEEDS  625 

for  the  expressed  consideration  of  one  dollar  and  natural  love  and 
affection,  and  at  the  same  time  Martin  executed  and  delivered  to  Wil- 
liam and  his  wife  a  life  lease  to  the  same  property.  The  deed  recited 
that  it  was  subject  to  the  lease.  The  deed  was  drawn  by  the  defend- 
ant William  Grinton  at  Martin's  request.  Grinton  also  attested  its 
execution,  as  a  witness,  and,  as  a  notary  public,  took  the  grantors' 
acknowledgment.  The  certificate  was  in  the  usual  form,  certifying 
that  the  grantors  acknowledged  that  they  signed,  sealed,  and  delivered 
the  said  instrument  as  their  free  and  voluntary  act,  for  the  uses  and 
purposes  therein  expressed.  The  lease  was  executed  by  Martin,  as 
lessor,  and  William  and  his  wife,  as  lessees ;  was  delivered  to  Wil- 
liam and  his  wife;  purported  to  be  for  the  term  of  their  "natural 
lives,"  and  upon  the  consideration  that  the  lessees  should  pay  all 
taxes,  keep  the  premises  in  as  good  condition  as  when  received,  and 
keep  the  buildings  insured, — three-fourths  of  the  insurance  for  the 
benefit  of  the  lessees,  and  one-fourth  for  their  children,  the  plaintiffs 
in  error.  The  lease  also  contained  the  following :  "And  it  is  further 
expressly  agreed  by  and  between  the  parties  hereto  that  in  case  said 
premises  should  at  any  time  be  sold  for  taxes  or  assessments,  and  said 
party  of  the  second  part  should  fail  to  redeem  said  premises  from 
such  sale  at  least  three  months  before  the  time  of  redemption  from 
said  sale  expires,  or  if  said  parties  of  the  second  part  shall  both  at 
any  time  cease  to  p^ersonally  occupy  said  premises  (loss  or  damage 
by  fire  or  inevitable  accident  excepted),  then  and  in  either  of  said 
last-named  events  the  said  children  of  said  William  P.  Bissell  above 
named  shall  have  the  right,  at  their  election,  to  declare  said  term  end- 
ed, anything  herein  to  the  contrary  notwithstanding,  and  the  said 
demised  premises,  or  any  part  thereof,  to  enter,  and  the  said  party 
of  the  second  part,  or  any  other  person  or  persons  occupying  in  or 
upon  the  same,  to  expel,  remove,  or  put  out,  using  such  force  as  may 
be  necessary  in  so  doing."  The  deed  and  lease  were  dated  January 
11,  1875,  but  the  acknowledgment  was  taken  March  31,   1875. 

Some  time  in  1877,  because  of  some  domestic  trouble,  William's 
wife  left  him,  and  went  to  a  distant  city  to  live  with  her  sister,  taking 
some  of  their  younger  children  with  her,  and  about  six  months  theie- 
after  William  left  the  premises,  also,  and  removed  to  Chicago;  he 
and  his  wife  having  permanently  separated,  and  neither  of  them,  nor 
their  children,  having  since  then  occupied  the  property.  When  Martin 
C.  Bissell  and  wife  executed  the  deed  to  plaintiffs  in  error,  he  left  it 
with  Grinton,  the  notary,  and  told  him  to  take  it  and  take  care  of  it, 
giving  no  other  directions  respecting  it.  Grinton  put  it  in  an  enve- 
lope and  placed  it  in  the  safe  in  the  office  where  he  and  Martin  were 
engaged  in  business.  He  was  then  transacting  business  for  Martin 
C.  Bissell  and  himself  under  a  contract  by  which  he  received  a  cer- 
tain share  of  the  profits.  The  private  papers  of  each,  as  well  as  their 
Bukd.Cas.Real  Prop, — 40 


626  DEEDS    AND    THEIR    REQUISITES 

partnership  papers,  were  kept  in  the  safe.  Grinton  retained  posses- 
sion of  the  deed  until  he  produced  it  in  court  after  the  death  of  Martin 
C.  Bissell, — a  period  of  about  15  years.  He  testified  that  it  had  never 
been  out  of  his  hands  since  it  was  placed  there  by  Bissell,  the  grantor ; 
and  it  does  not  appear  that  any  one  ever  asked  him  for  the  deed  un- 
til it  was  demanded  by  plaintiffs  in  error,  shortly  before  the  filing  of 
this  bill.  After  William  P.  Bissell  left  the  property,  in  1877,  Martin 
C.  Bissell  took  charge  of  it,  collected  the  rents,  and  paid  the  taxes 
on  it,  and  kept  it  in  repair,  the  collections  exceeding  the  disburse- 
ments by  only  a  small  amount. 

Plaintiffs  in  error  claim  this  was  done  by  agreement  between  him 
and  his  brother  William,  while  defendants  insist  it  was  done  as  the 
owner,  in  the  exercise  of  his  ownership  of  the  property.  Two  wit- 
nesses (Stevens  and  Dirkman)  testified  that  during  this  period  Martin 
told  them  at  different  times  that  the  property  belonged  to  his  brother's 
children.  One  of  these  witnesses, — an  old  neighbor  of  Martin's  and 
who  had  formerly  owned  the  property, — seeing  that  it  "was  running 
down,"  inquired  of  him  about  the  property,  and  proposed  to  pur- 
chase it,  but  Martin  told  him  he  could  not  sell  it ;  that  it  was  not  his ; 
that  he  had  deeded  it  to  his  brother's  children,  and  had  given  his 
brother  a  life  lease  on  it;  that  his  brother  had  full  control  of  it  be- 
fore he  went  to  Chicago,  but  had  allowed  it  to  run  to  waste ;  and  that 
he  had  paid  the  taxes  for  the  benefit  of  his  brother.  One  of  these 
conversations,  the  witness  testified,  occurred  seven  or  eight  years  be- 
fore the  trial,  which  took  place  in  1890,  and  the  other  five  or  six 
months  before  Martin's  death.  In  the  last  conversation  this  witness, 
Stevens,  asked  Martin  why  William  did  not  take  care  of  the  property ; 
and  the  reply  was  that  William  and  his  wife  had  parted,  and  he  did 
not  seem  to  take  much  charge  of  it.  The  other  witness  testified  that 
some  four  years  before  the  trial  he  was  employed  by  Martin  in  white- 
washing in  the  hotel.  He  was  an  elder  or  steward  in  the  African 
Methodist  Episcopal  Church,  and  was  interested  in  procuring  a  site 
for  a  church,  and  suggested  to  Mr.  Bissell  the  idea  of  letting  him 
have  the  property  so  that  he  "could  turn  it  over  for  a  church,"  but 
that  Mr.  Bissell  replied  that  he  could  not  let  him  have  it ;  that  it  was 
his  brother's  children's  property,  and  he  would  attend  to  it.  Two 
witnesses  (Grinton  and  Vose)  testified  for  defendants  that,  after  Wil- 
liam P.  Bissell  left  the  property,  Martin  C.  Bissell  turned  it  over,  first 
to  Grinton,  and  then  to  Vose,  who  took  charge  of  it,  kept  the  ac- 
count of  collections  and  disbursements,  and  carried  it  on  the  books  in 
Martin's  name,  and  in  the  same  manner  as  other  property  of  Martin's. 
Vose  testified  that  Martin  tried  to  sell  it,  and  in  1885  talked  of  trad- 
ing it  for  land  in  Virginia.  Vose  claimed  to  have  acquired  an  in- 
terest in  the  property,  and  had  a  suit  pending  against  the  executors 
to  enforce  it.  Martin  C.  Bissell,  by  his  will,  after  making  various 
small  bequests  to  plaintiffs  in  error  and  others,  gave  the  bulk  of  his 


DELIVERY   AND    ACCEPTANCE    OF    DEEDS  627 

estate  to  defendants  in  error,  in  trust  for  certain  religious  purposes. 
The  testator's  property  was  not  specifically  described  in  the  will. 

Carter,  J.^°  (after  stating  the  facts).  The  controverted  question 
in  this  case  is,  did  the  title  to  the  hotel  property,  subject  to  the  lease 
to  William  P.  Bissell,  vest  in  plaintiffs  in  error  by  virtue  of  the  deed 
of  Martin  C.  Bissell  and  wife,  or  did  the  deed  fail  to  take  effect,  be- 
cause of  nondelivery?     *     *     * 

But  the  question  still  arises  whether  or  not,  after  considering  all 
proper  evidence  and  rejecting  all  held  to  be  improper,  the  decree  of 
the  trial  court  can  be  sustained.  "No  particular  form  or  ceremony  is 
necessary  to  constitute  a  delivery"  of  a  deed.  "It  may  be  by  acts 
without  words,  or  by  words  without  acts,  or  by  both.  Anything  which 
clearly  manifests  the  intention  of  the  grantor  and  the  person  to  whom 
it  is  delivered  that  the  deed  shall  presently  become  operative  and 
effectual,  that  the  grantor  loses  all  control  over  it,  and  that  by  it  the 
grantee  is  to  become  possessed  of  the  estate,  constitutes  a  sufficient 
delivery.  The  very  essence  of  the  delivery  is  the  intention  of  the 
party."  Bryan  v.  Wash,  2  Oilman,  557;  Cline  v.  Jones,  HI  111.  563, 
"^nd  cases  there  cited.  It  is  well  settled  that  the  law  makes  stronger 
presumptions  in  favor  of  the  delivery  of  deeds  in  cases  of  voluntary 
settlements,  especially  in  favor  of  infants,  than  in  ordinary  cases  of 
bargain  and  sale.  The  acceptance  by  the  infant  will  be  presumed. 
And  it  is  even  held  that  an  instrument  may  be  good  as  a  voluntary 
settlement,  though  it  be  retained  by  the  grantor  in  his  possession  until 
his  death,  providing  the  attending  circumstances  do  not  denote  an 
intention  contrary  to  that  appearing  upon  the  face  of  the  deed.  Bryan 
V.  Wash  and  Cline  v.  Jones,  supra;  Reed  v.  Douthit,  62  111.  348; 
Walker  v.  Walker,  42  111.  311,  89  Am.  Dec.  445;  Otis  v.  Beck  with, 
49  111.  121;  Masterson  v.  Cheek,  23  111.  72;  Souverbye  v.  Arden,  1 
Johns.  Ch.  (N.  Y.)  242;  Bunn  v.  Winthrop,  Id.  329;  Scrugham  v. 
Wood,  15  Wend.  (N.  Y.)  545,  30  Am.  Dec.  75 ;  Perry,  Trusts,  §  103 ; 
Urann  v.  Coates,  109  Mass.  581;  Tompkins  v.  Wheeler,  16  Pet.  114, 
10  L.  Ed.  903.  And  it  was  said  in  Walker  v.  Christen,  121  111. 
97,  11  N.  E.  893,  2  Am.  St.  Rep.  68,  that  "the  crucial  test,  in  all  cases, 
is  the  intent  with  which  the  act  or  acts  relied  on  as  the  equivalent  or 
substitute  for  actual  delivery  were  done." 

The  deed  in  question  must  have  taken  effect  at  once  upon  its  ac- 
knowledgment and  delivery  to  Grinton,  or  not  at  all;  and  the  real 
question  is,  with  what  intention  was  the  deed  placed  in  the  hands  of 
Grinton?  Blackman  v.  Preston,  123  111.  385,  15  N.  E.  42;  Hayes 
V.  Boylan,  141  111.  408,  30  N.  E.  1041,  33  Am.  St.  Rep.  326;  Bovee 
V.  Hinde,  135  111.  137,  25  N.  E.  694;  and  cases  supra.  Nothing  was 
said  by  the  grantor  at  the  time  to  indicate  an  intention  that  the  deed 
should  not  take  effect.  His  instructions  were  to  take  the  deed,  and 
take  care  of  it, — whether  for  himself  or  the  grantees,  he  did  not  say 

10  Part  of  the  opinion  is  omitted. 


€28  DEEDS   AND   THEIR    REQUISITES 

The  grantees  were  his  nephews  and  nieces,  seven  in  number;  the 
adults  hving  in  different  places,  and  the  minors,  with  their  father,  his 
brother,  on  the  premises  conveyed.  Under  the  circumstances,  it  may 
have  been  a  question  of  some  difficulty,  in  his  mind,  to  determine  to 
whom  the  deed  should  be  delivered.  Instead  of  delivering  it  to  either 
of  the  grantees,  he  could  lawfully  deliver  it  to  a  third  person  for  their 
benefit.  He  did  deliver  it  to  a  third  person,  and  whether  for  their 
benefit,  or  only  as  custodian  for  himself,  is  a  question  of  fact,  to  be 
determined  from  the  evidence. 

Defendants  insist  that  Grinton  was  the  grantor's  clerk,  and  that 
his  possession  was  the  possession  of  the  grantor.  It  is  not  clear  from 
the  evidence  what  the  business  relations  were  between  Grinton  and 
Martin  C.  Bissell.  Grinton  testified  that  he  was  not  employed  by  the 
day,  week,  month,  or  year;  that  he  always  had  a  partnership  con- 
tract with  Mr.  Bissell  in  the  profits,  and  that  that  was  the  case  when 
these  papers  were  executed  ^  that  the  "partnership  papers,"  as  witness 
called  them,  as  well  as  his  individual  papers  and  those  of  Martin  C. 
Bissell,  were  all  kept  in  the  safe.  Whether  he  was  responsible  for 
the  losses  and  expenses  of  the  business  is  not  disclosed  by  the  evi- 
dence. From  the  evidence  given,  he  may  have  been  a  partner  in  busi- 
ness with  Bissell,  or  merely  an  employe  receiving  a  share  of  the  prof- 
its as  a  measure  of  his  pay  for  his  services.  In  Lockwood  v.  Doane, 
107  111.  235,  this  court  held  that:  "Where  parties  agree  to  share  in 
the  profits  of  business,  the  law  will  infer  a  partnership  between  them 
in  the  business  to  which  the  agreement  refers,  but  this  presumption 
may  be  disproved.  It  is  prima  facie  evidence,  and  will  control  until 
rebutted."  Niehoff  v.  Dudley,  40  111.  406.  Under  the  evidence  and 
these  authorities,  it  would  seem  that  the  relation  between  Grinton  and 
Martin  C.  Bissell,  at  the  time  of  the  transaction  in  question,  must  be 
treated  as  that  of  a  partnership.  If  so,  the  transaction  not  pertain- 
ing to  their  partnership  affairs,  possession  of  the  deed  by  Grinton  was 
not,  by  virtue  of  their  relation,  the  possession  of  the  grantor,  but  was 
the  possession  of  a  third  person.  Grinton  took  this  deed,  and  placed 
it  in  an  envelope,  and  put  it  in  the  safe,  and  kept  it  in  his  possession 
for  15  years  thereafter,  until  the  trial  in  the  circuit  court.  Had  Martin 
intended  to  retain  control  of  it,  he  could  as  well  have  placed  it  with 
his  own  papers  in  the  safe.  This  he  did  not  do,  nor  did  he  ever  as- 
sume or  assert  any  control  over  the  deed  afterwards. 

Grinton  was  a  notary  public,  and  as  such  took  the  acknowledg- 
ment. By  this  acknowledgment  the  grantors  acknowledged  that  they 
signed,  sealed,  and  delivered  the  instrument  as  their  free  and  volun- 
tary act,  for  the  uses  and  purposes  expressed  in  it.  Whether,  on  an 
issue  as  to  the  delivery  of  a  deed,  otherwise  left  in  doubt  by  the 
proofs,  such  an  acknowledgment  would  be  sufficient  evidence  of  a  de- 
livery, it  is  not  necessary  in  this  case  to  decide ;  for,  as  we  conceive, 
the  intention  of  the  grantor  is  otherwise  disclosed  by  the  evidence 


DELIVERY   AND    ACCEPTANCE    OF   DEEDS  629 

with  sufficient  clearness,  and  this,  too,  whether  Grinton  was  a  part- 
ner or  a  mere  employe  of  Martin  C.  Bissell.  We  find  nothing  in 
the  attending  circumstances  denoting  an  intention  on  the  part  of  the 
grantor  that  the  deed  should  not  take  effect;  but,  on  the  contrary, 
there  is  sufficient  evidence  that  he  intended  the  deed  to  become  pres- 
ently effective.  He  at  the  same  time  executed  and  delivered  to  his 
brother,  the  father  of  plaintiffs  in  error,  and  to  his  brother's  wife, 
who  were  already  in  possession  of  the  property,  a  life  lease  therefor. 
The  deed  was,  on  its  face,  made  subject  to  the  lease.  By  the  lease 
the  lessees  were  required  to  insure  the  property  for  the  benefit,  in 
part,  for  themselves,  and  in  part  for  the  grantees.  The  lease  recog- 
nized the  grantees  as  the  owners  of  the  property,  and,  for  breach  of 
any  of  the  covenants  in  the  lease,  they  were  authorized  to  declare 
the  term  ended,  and  to  enter  and  expel  the  lessees.  The  lease  and 
deed  were  executed  together,  and  were  parts  of  the  same  transaction, 
whereby  Martin  C.  Bissell  disposed  of  all  his  interest  in,  the  posses- 
sion of,  and  title  to,  the  property.  He  reserved  nothing  in  either 
the  lease  or  deed. 

The  delivery  of  the  lease  to,  and  the  possession  of  the  property  by, 
William,  are  not  disputed.  The  right  to  declare  a  forfeiture  and  to 
re-enter  was  not  reserved  to  the  lessor,  but  to  plaintiffs  in  error,  the 
grantees  in  the  deed.  It  would  seem  from  this  provision  that,  at  the 
time  of  the  transaction,  Martin  C.  Bissell  intended  that  the  title  should 
vest  in  appellants;  and  that  he  understood  it  did  so  vest.  Then,  again, 
it  was  clearly  proved  that  after  William  had  left  the  property,  and 
Martin  had  taken  possession  and  made  repairs,  leased  it,  paid  the 
taxes,  and,  to  all  outward  appearances,  acted  as  the  owner,  he  told  two 
witnesses  that  the  property  belonged  to  his  brother's  children,  and 
that  he  could  not,  for  that  reason,  sell  or  dispose  of  it,  but  would 
attend  to  it, — evidently  meaning  that  he  was  taking  care  of  it  for 
his  brother  and  his  brother's  children.  It  may  be  that  after  the  lapse 
of  years  he  concluded  that  he  was  entitled  to  and  would  retain  the 
property  as  his  own.  In  other  words,  he  may  have  changed  his  mind 
in  reference  to  making  a  gift  of  the  property  to  these  beneficiaries, 
honestly  concluding  that  under  the  circumstances  he  had  a  right  to 
do  so,  but  if  he  did  so  conclude  he  was  simply  mistaken  as  to  the  legal 
effect  of  what  had  been  done.  The  facts  are  somewhat  similar  to 
those  in  Douglas  v.  West,  140  111.  461,  31  N.  E.  403.  See,  also,  Win- 
terbottom  v.  Pattison,  152  111.  334,  38  N.  E.  1050.  We  are  satis- 
fied from  the  evidence  that  Martin  C.  Bissell  intended  that  the  deed 
should  take  effect  when  he  executed  and  acknowledged  it  and  deliv- 
ered it  to  Grinton,  and  it  must  be  so  held. 

The  decree  of  the  circuit  court  is  reversed,  and  the  cause  remanded, 
with  directions  to  dismiss  the  cross  bill,  and  to  enter  a  decree  in  ac- 
cordance with  the  prayer  of  the  bill  of  plaintiffs  in  error.  Reversed 
and  remanded. 


630  DEEDS    AND    THEIR    REQUISITES 


DECKER  V.  STANSBERRY. 

(Supreme  Court  of  Illinois,  1911.    249  111,  487,  94  N.  E.  940,  Ann.  Cas. 

1912A,  227.) 

Appeal  from  Circuit  Court,  Jasper  County ;  Thomas  M.  Jett,  Judge. 

Bill  by  Michael  Decker  against  Dale  Stansberry  and  others.  De- 
cree for  complainant,  and  defendants  appeal.    Reversed  and  remanded. 

Hand,  J.  This  was  a  bill  in  chancery,  filed  by  Michael  Decker 
against  Dale  Stansberry,  Orville  Stansberry,  Lewis  Decker,  and  John 
H,  Shup,  to  remove,  as  a  cloud  upon  the  title  of  Michael  Decker  to  the 
N.  E.  1/4  of  the  N.  W.  1/4  and  the  undivided  seven-eighths  of  the 
N.  W.  1/4  of  the  N.  W.  %  of  section  15,  township  8  N.,  range  14  W. 
of  the  second  principal  meridian,  Jasper  county,  111.,  a  deed  from 
Michael  Decker  and  wife  to  Clarence  M.  Decker,  bearing  date  March 
17,  1885,  to  the  undivided  seven-eighths  of  the  N.  W.  l^  of  the  N.  W. 
1/4- of  said  section  15;  also  an  administrator's  deed  executed  by  John 
H.  Shup,  administrator  de  bonis  non  of  the  estate  of  Clarence  M. 
Decker,  deceased,  to  the  N.  E,  1/4  of  the  N.  W,  14  and  the  undivided 
seven-eighths  of  the  N.  W.  14  of  the  N.  W.  14  of  said  section  15. 
bearing  date  March  17,  1909,  both  of  which  deeds  had  been  recorded 
in  the  office  of  the  recorder  of  deeds  of  Jasper  county.  The  de- 
fendant Dale  Stansberry  filed  an  answer,  in  which  she  denied  all  the 
material  allegations  of  the  said  bill.  Orville  Stansberry  filed  a  plea, 
denying  that  all  parties  in  interest  had  been  made  parties  defendant 
to  said  bill.  John  H.  Shup  filed  a  disclaimer,  and  Lewis  Decker,  a 
minor,  died  pending  the  suit  in  the  circuit  court.  A  replication  was 
filed  to  the  answer.  The  case  was  referred  to  a  commissioner  to  take 
the  proofs,  and  a  decree  was  entered  finding  that  Michael  Decker  was 
the  owner  of  the  N.  E,  i/4  of  the  N.  W,  l^  of  said  section  15,  and  that 
Dale  Stansberry  was  the  owner  of  the  undivided  seven-eighths  of 
the  N.  W.  14  of  the  N.  W,  i/4  of  said  "section  15,  dismissing  the  bill  as 
to  the  undivided  seven-eighths  of  the  N.  W.  14  of  the  N.  W.  14  of 
said  section  15,  and  setting  aside  said  administrator's  deed  as  a  cloud 
upon  the  title  of  Michael  Decker  to  the  N.  E.  %  of  the  N.  W.  14  of  ^ 
said  section"  15.  Dale  Stansberry  and  Orville  Stansberry  have  prose- 
cuted an  appeal  to  this  court,  and  have  assigned  error  as  to  the  ac- 
tion of  the  court  in  holding  that  IMichael  Decker  was  the  owner  of  the 
N.  E.  1/4  of  the  N.  W.  y^  of  section  15,  in  decreeing  that  Dale  Stans- 
berry was  the  owner  of  the  undivided  seven-eighths  of  the  N.  W.  14 
of  the  N.  W.  1/4  of  section  15,  and  in  dismissing  the  bill  as  to  said 
premises. 

The  facts,  in  brief,  are  as  follows:  In  the  year  1885  Michael  Decker 
owned  a  farm  of  200  acres,  situated  in  Jasper  county,  upon  which 
he  resided  with  his  wife  and  children  as  their  home ;  that  some  time 
prior  to  that  date  he  signed  a  guardian's  bond,  upon  which  default 
was  made ;    that  his  principal  and  cosurety  were  insolvent ;    that  in 


DELIVERY    AND    ACCEPTANCE    OF    DEEDS  C31 

order  to  escape  liability  upon  the  bond  he  advised  with  a  justice  of  the 
peace  residing  in  the  immediate  neighborhood,  and  thereupon  deter- 
mined to  convey  all  of  his  real  estate,  except  his  homestead,  to  his 
minor  sons,  whereupon  he  executed  a  deed  to  his  son  Thomas  for 
40  acres  of  his  farm,  and  a  deed  to  his  son  Clarence  M.  for  75  acres 
of  his  farm,  his  wife  joining  therein ;  that  the  deeds,  when  executed, 
were  delivered  to  the  justice  of  the  peace  who  prepared  them,  and  he 
was  instructed  by  Michael  Decker  to  have  them  recorded ;  that  after 
the  deeds  were  recorded  they  were  returned  to  Mr.  Decker,  and  they 
remained  in  his  possession  until  the  date  of  the  trial ;  that  Clarence 
M.  Decker,  at  the  time  the  deeds  were  executed  and  recorded,  was 
six  years  of  age ;  that  the  premises  in  the  deed  to  Clarence  M.  Decker 
were  described  as  "the  northeast  quarter  and  the  undivided  seven- 
eighths  of  the  northwest  quarter  of  the  northwest  quarter  of  section 
fifteen  (15),  town  eight  (8)  north,  range  fourteen  (14)  west,  contain- 
ing seventy-five  (75)  acres,  more  or  less,  situated  in  the  county  of 
Jasper,  in  the  state  of  Illinois,"  and  tlie^deed_rjecited  a  consideration 
of  $750;  that  Clarence  M.  Decker  continued  to  reside  with  his  par- 
ents upon  said  farm  until  he  was  about  20  years  of  age,  when  he  en- 
listed in  the  army;  that  after  his  return  from  the  Philippines,  and 
discharge,  he  made  his  home  with  his  parents  until  he  was  married 
to  Dale  Anderson,  now  the  appellant  Dale  Stansberry;  that  after  his 
marriage  he  and  his  wife  lived  at  his  father's  home  for  a  time,  and 
while  a  small  house  was  being  erected  on  the  N.  W.  i/4  of  the  N.  W. 
1/4  of  said  section  15 ;  that  after  the  completion  of  said  house  Clar- 
ence M.  Decker  and  wife  moved  onto  the  N.  W.  ^4  o^  the  N.  W.  i/4 
of  section  15,  where  Lewis  Decker  was  born,  and  where  Clarence  M. 
Decker  and  family  lived  until  his  death,  which  occurred  in  1905,  dur- 
ing which  time  he  farmed  the  75-acre  tract,  and  paid  rent  to  hin 
father  for  a  part  of  said  premises ;  that  after  the  death  of  Clarence 
M.  Decker  his  widow  and  child  resided  for  a  time  with  her  people, 
and  afterwards  returned  to  and  resided  in  the  house  which  had  been 
erected  upon  said  farm  as  a  home  for  Clarence  AI.  Decker  and  family ; 
that,  subsequent  to  the  death  of  Clarence  M,  Decker,  Michael  Decker 
seems  to  have  controlled  the  land,  other  than  the  dwelling  house,  and 
paid  to  the  widow  $50  per  year,  which  she  testified  was  paid  as  rent, 
but  which  Michael  Decker  testified  was  given  her  by  him  for  the 
support  of  the  child;  that  Michael  Decker  always  paid  the  taxes  on 
said  lands;  that  about  four  years  after  the  death  of  Clarence  M. 
Decker  letters  of  administration  were  taken  out  on  his  estate,  and  the 
75  acres  in  question  were  sold  at  administrator's  sale  by  John  H.  Shup 
to  pay  debts,  which  included  the  widow's  award,  and  Dale  Decker 
(now  Dale  Stansberry)  was  the  purchaser  at  the  sale  and  received  an 
administrator's  deed  therefor,  which  is  the  deed  sought  to  be  set 
aside  in  this  proceeding;  that  shortly  thereafter  the  widow  married 
Orville  Stansberry,  and  the  Stansberrys  were  living  in  the  house  upon 
the  premises  at  the  time  this  bill  was  filed,  and  claimed  to  be  in  pos- 


632  DEEDS    AND    THEIR    REQUISITES 

session  of  the  entire  75  acres  which  are  now  in  controversy,  under 
^atd  administrator's  deed. 

While  it  is  contended  that  this  bill  will  not  lie  to  remove  a  cloud, 
by  reason  of  the  fact  that  the  land  was  not  vacant  or  the  complainant 
was  not  in  possession  of  the  land  at  the  time  he  filed  his  bill,  those 
questions  do  not  seem  to  have  been  raised  in  the  trial  court,  so  they 
will  therefore  be  deemed  to  have  been  waived,  and  will  not  be  con- 
sidered by  this  court.    Stout  v.  Cook,  41  111.  447. 

The  controlling  question  in  this  court,  as  we  view  this  case,  is :  Was 
the  deed  from  Michael  Decker  and  wife  delivered  to  Clarence  M. 
Decker,  so  as  to  invest  him  with  the  title  to  said  premises?  The  gran- 
tor and  wife  executed  the  deed  and  had  it  recorded,  and  the  grantor 
thereafter  retained  the  deed.  Where  a  father  executes  a  deed  to 
his  minor  child,  who  is  of  tender  years,  and  has  it  recorded,  under 
the  decisions  of  this  court  those  acts  constitute  a  good  delivery  of  the 
deed  to  the  child.  In  Hayes  v.  Boylan,  141  111.  400,  on  page  406,  30 
N.  E.  1041,  on  page  1042,  33  Am.  St.  Rep.  326,  it  was  said:  "Where 
a  parent  executes  a  deed  to  an  infant  child,  which  is  beneficial  to  the 
child,  and  manifests,  by  his  words  and  conduct,  that  he  intends  that 
the  deed  shall  operate  at  once,  a  delivery  will  be  presumed,  and  proof 
of  actual  delivery  is  unnecessary.  This  is  because  the  infant  is  in- 
capable of  doing  any  act  in  regard  to  the  deed  which  he  might  not 
avoid  on  reaching  his  majority,  and  it  is  the  duty  of  the  parent,  as 
his  natural  guardian,  to  accept  and  preserve  the  deed  for  him.  Mas- 
terson  v.  Cheek,  23  111.  72;  Bryan  v.  Wash,  2  Oilman,  557;  Newton 
V.  Healer,  41  Iowa,  334."  And  in  Winterbottom  v.  Pattison,  152  111. 
334,  on  page  340,  38  N.  E.  1050,  on  page  1051,  it  was  said:  "The 
grantee's  acceptance  will  sometimes  be  presumed  from  the  fact  that 
the  deed  is  for  his  benefit.  Rivard  v.  Walker,  39  111.  413 ;  5  Am.  & 
Eng.  Ency.  of  Law,  448.  Where  the  grantee  is  an  infant,  the  pre- 
sumption of  acceptance  is  a  rule  of  law,  and  'knowledge  of  the  con- 
veyance and  of  its  acceptance  is  not  necessary.'  "  In  the  case  of  Baker 
V.  Hall,  214  111.  364,  73  N.  E.  351,  the  authorities  upon  this  question  are 
collated  and  reviewed,  and  in  Creighton  v.  Roe,  218  111.  619,  75  N. 
E.  1073,  109  Am.  St.  Rep.  310,  it  was  held  that,  where  a  deed  is  re- 
corded, the  presumption  of  delivery  is  not  overcome  by  the  fact  that 
the  grantor,  who  stood  in  a  fiduciary  relation  to  the  grantee,  retained 
possession  of  the  property  and  deed. 

.We  are  of  the  opinion  that  the  deed  from  Michael  Decker  and 
wife  to  Clarence  M.  Decker  was  delivered.  The  deed  having  been 
delivered,  and  the  title  having  vested  in  Clarence  M.  Decker,  and  jt 
appearing  the  deed  was  made  for  the  purpose  of  placing  the  premises 
in  question  beyond  the  reach  of  the  creditors  of  Michael  Decker,  a 
court  of  equity  will  not  assist  him  in  reclaiming  the  land.  In  Jolly 
V.  Graham,  222  111.  550,  on  page  554,  78  N.  E.  919,  on  page  920  (113 
Am.  St.  Rep.  435),  it  was  said:  "The  law  will  not  permit  a  party  to 
deliberately  put  his  property  out  of  his  control  for  a  fraudulent  pur- 


DELIVERY  AND  ACCEPTANCE  OF  DEEDS  633 

pose,  and  then,  through  the  intervention  of  a  court  of  equity,  regain 
the  same  after  his  fraudulent  purpose  has  been  accomplished."  And 
in  Creighton  v.  Roe,  supra,  218  111.  on  page  624,  75  N.  E.  on  page 
1075,  109  Am.  St.  Rep.  310,  it  was  said:  "There  is  another  good  rea- 
son why  the  decree  of  the  circuit  court  must  be  affirmed.  The  bill 
is  a  confession  on  the  part  of  the  plaintiff  in  error  that  he  made  the 
deed  which  he  now  seeks  to  avoid,  for  the  purpose  of  placing  his 
property  in  such  condition  that  his  wife  could  not  secure  her  dower 
out  of  it.  *  *  *  That  he  could  not  put  it  out  of  his  hands  for 
the  purpose  of  defeating  dower,  and,  when  the  motive  for  so  doing 
had  ceased,  invoke  the  aid  of  a  court  of  equity  to  reinvest  himself  with 
the  title,  is  too  well  known  for  controversy.  Muller  v.  Balke,  154  111. 
110  [39  N.  E.  658]  ;  Tyler  v.  Tyler,  126  111.  525  [21  N.  E.  616,  9 
Am.  St.  Rep.  642]."  See,  also,  Miller  v.  Marckle,  21  111.  152;  Kirk- 
patrick  V.  Clark,  132  111.  342,  24  N.  E.  71,  8  L.  R.  A.  511,  22  Am.  St. 
Rep.  531 ;  Brady  v.  Huber,  197  111.  291,  64  N.  E.  264,  90  Am.  St. 
Rep.  161 ;  Jones  v.  Jones,  213  111.  228,  72  N.  E.  695. 

It  is  finally  contended  that  the  deed  from  Michael  Decker  to  Clar- 
ence M.  Decker  did  not  cover  the  N.  E.  1/4  of  the  N.  W.  14  of  sec- 
tion 15.  The4escription  is  as  follows  :  "The  northeast  quarter  and  the 
undivided  seven-eighths  of  the  northwest  quarter  of  the  northwest 
quarter  of  section  15,"  etc.,  and  containing  75  acres,  more  or  less. 
The  evidence  shows  the  grantor  owned  the  N.  E.  1/4  of  the  N.  W. 
14  of  section  15,  but  did  not  own  the  N.  E.  1/4  of  that  section,  and 
the  deed  recites  that  he  conveyed  75  acres,  more  or  less,  and  the  jus- 
tice of  the  peace  testified,  and  Michael  Decker  admitted,  the  deed 
was  intended  to  cover  the  N.  E.  ^4  of  the  N.  W.  14,  etc.,  of  section 
15.  It  is  obvious,  we  think,  that  any  one  reading  the  description  found 
in  the  deed  would  understand  the  grantor  intended  to  convey,  and  did 
convey,  the  N.  E.  V4,  of  the  N.  W.  y^  of  section  15,  and  not  the  N.  E. 
i?4  of  section  15,  when  the  description  is  read  in  connection  with  the 
number  of  acres  to  be  conveyed.  When  a  description  in  a  deed  may 
refer  to  two  tracts  of  land,  it  will  be  presumed  that  the  grantor  intended 
to  convey  the  tract  which  he  had  title  to,  and  not  the  land  which  he  did 
not  own  (Dougherty  v.  Purdy,  18  111.  206;  Cornwell  v.  Cornwell,  91 
111.  414) ;  and  it  is  held,  when  a  deed  contains  two  descriptions,  it 
should  be  construed  most  strictly  against  the  grantor  and  in  favor  of 
the  grantee.  City  of  Alton  v.  Illinois  Transportation  Co.,  12  111.  38, 
52  Am.  Dec.  479 ;  Sharp  v.  Thompson,  100  111.  447,  39  Am.  Rep.  61 ; 
Boone  v.  Clark,  129  111.  466,  21  N.  E.  850,  5  L.  R.  A.  276. 

From  a  careful  consideration  of  this  record,  we  think  it  clear  that 
the  deed  from  Michael  Decker  to  Clarence  M.  Decker  was  made  to 
defraud  creditors ;  that  it  was  delivered  to  the  grantee ;  that  it  con- 
veyed the  N.  E.  %  of  the  N.  W.  l^  and  the  undivided  seven-eighths 
of  the  N.  W.  }i  of  the  N.  W.  14  of  section  15;  and  that  Dale  Stans- 
berry  acquired  title  to  the  entire  75  acres  at  the  administrator's  sale. 

The  decree  of  the  circuit  court,  so  far  as  it  finds  the  title  to  the 


C34  DEEDS    AND   THEIR    REQUISITES 

N.  E.  li  of  the  N.  W.  i^  of  section  15  to  be  in  Michael  Decker,  and 
sets  aside  the  administrator's  deed  to  Dale  Stansberry,  will  be  re- 
versed. In  all  other  particulars  the  decree  will  be  affirmed,  and  the 
case  will  be  remanded  to  the  circuit  court,  with  directions  to  dismiss 
the  bill.    Reversed  and  remanded,  with  directions. 


2.  Delivery  as  an  Escrow 


SHURTZ  V.  COLVIN. 
(Supreme  Court  of  Ohio,  1S96.    55  Ohio  St.  274,  45  N.  E.  527.) 

Error  to  circuit  court,  Muskingum  county. 

The  original  suit  was  commenced  by  Oliver  C.  Shurtz,  as  admin- 
istrator of  Lewis  Schultz,  deceased,  against  James  Colvin,  for  the 
foreclosure  of  a  mortgage  given  by  the  latter  to  the  decedent  to  se- 
cure a  loan  of  $6,500.  James  E.  Colvin,  who  had  a  subsequent  mort- 
gage on  the  same  land,  was  made  a  party.  James  Colvin  made  no 
defense.  James  E.  Colvin  filed  an  answer  and  cross  petition.  He 
claimed  priority  over  the  mortgage  of  the  plaintiff  on  two  grounds : 
(1)  That  at  the  time  the  Shurtz  mortgage  was  made  he  was  the  legal 
owner  of  an  undivided  one-third  interest  in  the  fourth,  fifth,  and  sixth 
tracts  included  in  the  Shurtz  mortgage ;  that  he,  with  his  co-tenant, 
Silas  H.  Colvin,  had  by  a  verbal  agreement  sold  the  land  to  James 
Colvin,  but  the  purchase  money  had  not  been  paid,  and  on  April  8, 
1887,  they  made  a  deed,  and  placed  it  in  the  hands  of  one  Howard 
Colvin,  to  be  delivered  when  the  money  had  been  paid  or  secured 
to  be  paid ;  that,  contrary  to  instructions,  Howard  delivered  it  on  Au- 
gust 3,  1887,  the  money  not  having  been  paid, — the  Shurtz  mortgage 
having  been  made  prior  thereto  on  July  23,  1887.^^ 

MiNSHALL,  J.^^  *  *  *  James  E.  Colvin  had,  by  a  verbal  agree- 
ment made  in  1884,  sold  his  interest  in  the  premises  to  James  Colvin, 
who  went  into  possession  under  the  agreement,  and  was  in  posses- 
sion at  the  time  the  Shurtz  loan  was  made.  Some  time  before  the 
making  of  the  Shurtz  mortgage,  James  E.  Colvin,  with  his  co-tenant 
Silas  H.  Colvin,  executed  a  deed  for  the  land  to  James  Colvin,  the 
purchaser,  and  placed  it  in  the  hands  of  a  third  person,  Howard  Col- 
vin, to  be  delivered  when  the  purchase  money  was  paid  or  secured 
by  mortgage.  Afterwards,  for  the  purpose  of  enabling  James  Colvin 
to  obtain  a  loan  of  money  on  the  land,  Howard  delivered  the  deed 
to  him,  that  he  might  obtain  a  description  of  the  premises,  and  exhibit 
it  as  evidence  of  his  title.     The  facts  found  bear  this  construction, 

11  Part  of  the  statement  of  facts  is  omitted. 

12  Part  of  the  opinion  is  omitted. 


DELIVERY    AND    ACCEPTANCE    OF    DEEDS  635 

and  none  other.  It  is  true  that,  from  the  facts  found,  it  was  not 
to  be  regarded  as  delivered.  But  the  law  has  always  attached  much 
importance  to  an  overt  act.  It  contravenes  its  spirit  to  allow  that  an 
act  may  be  done  with  an  intention  contrary  to  the  act  itself.  And 
while,  as  between  parties,  the  intention  may  be  shown,  it  seldom  per- 
mits this  to  be  done  where  to  do  so  would  work  a  fraud  on  innocent 
third  persons.  Here,  while  James  Colvin  was  in  possession  of  the 
land  and  of  a  deed  to  it  by  James  E.  Colvin,  of  whom  he  had  pur- 
chased, the  Shurtzes,  on  the  faith  of  these  appearances,  loaned  him 
$6,500,  and  took  a  mortgage  on  the  land  to  secure  its  payment,  and, 
as  the  court  expressly  finds,  without  any  knowledge  that  the  deed 
had  ever  been  held  as  an  escrow  by  any  one,  and  that  it  was  taken  in 
good  faith,  without  any  knowledge  that  James  E.  Colvin  had  or 
claimed  any  interest  in  or  lien  on  the  land.  It  would  seem,  on  the 
plainest  principles  of  justice,  that  under  these  circumstances  James 
E.  Colvin,  as  against  the  owner  of  the  Shurtz  mortgage,  should  not 
be  heard  to  say  that  the  deed  had  not  in  fact  been  delivered  at  the 
time  the  mortgage  was  made,  and  that  his  equity  is  superior  to  it. 
He  trusted  Howard  with  the  deed,  to  be  delivered  when  the  condi- 
tions had  been  performed.  Howard  violated  his  trust.  He  delivered 
it  to  the  grantee,  that  the  latter  might  obtain  a  loan  on  the  land  by 
exhibiting  it  as  evidence  of  his  title.  The  loan  was  so  obtained  of 
persons  who  had  no  knowledge  of  the  facts,  and  were  entirely  inno- 
cent of  any  fraud  in  the  matter.  Who,  then,  should  suffer  the  loss? 
It  may  be  regarded  as  one  of  the  settled  maxims  of  the  law  that  where 
one  of  two  innocent  persons  must  suffer  from  the  wrongful  act  of 
another,  he  must  bear  the  loss  who  placed  it  in  the  power  of  the  per- 
son as  his  agent  to  commit  the  wrong.  Or,  more  tersely,  he  who 
trusts  most  ought  to  suffer  most.  And  it  would  seem  that  the  rights 
of  the  parties  in  this  case  should  be  governed  by  this  principle,  un- 
less there  is  some  rigid  exception,  established  by  the  decession,  which 
forbids  its  application  where  a  deed  is  delivered  in  escrow. 

Before  considering  this  question,  it  may  be  well  to  note  that  no 
importance  can  be  attached  to  the  fact  that  the  deed  on  the  faith  of 
which  the  loan  was  made  had  not  yet  been  recorded.  A  deed  on  de- 
livery passes  title  to  the  land,  whether  recorded  or  not.  It  takes 
effect  on  delivery.  The  object  of  recording  a  deed  is  to  give  notice 
to  third  persons,  not  to  perfect  it  as  a  muniment  of  title.  Where  not 
recorded,  it  will  be  treated  as  a  fraud  against  third  persons  dealingt 
with  the  land  without  notice  of  its  existence.  Hence  the  first  deed, 
if  delivered,  having  been  duly  executed,  passed  the  title  to  James  Col- 
vin. Recording  it  would  have  added  nothing  to  its  effect  as  a  deed, 
and  the  failure  to  record  it  in  no  way  influenced  the  conduct  of  any 
of  the  parties  to  the  suit.  There  are  some  cases  which  seem  to  hold 
that,  where  a  deed  is  delivered  as  an  escrow  to  a  third  person,  to  be 
delivered  on  the  performance  of  certain  conditions,  no  title  passes  if 


C3G  DEEDS    AND    THEIR    REQUISITES 

delivered  without  the  conditions  being  performed,  and  that  this  is 
so  as  against  an  innocent  purchaser  from  the  vendee.  Everts  v.  Agnes, 
6  Wis.  453,  is  such  a  case.  The  argument  there  is  that  no  title  passes 
by  deed  without  delivery;  that  where  a  deed  is  delivered  by  one 
who  holds  it  as  an  escrow,  contrary  to  the  vendor's  instructions,  there 
is  no  delivery,  and  consequently  an  innocent  purchaser  acquires  no 
title. 

To  the  objection  that,  if  this  be  true,  there  is  no  safety  for  pur- 
chasers, the  court  said  that,  if  it  be  not  true,  there  is  none  for  ven- 
dors. This  seems  to  be  a  misconception  of  the  real  situation  of  the 
parties.  A  vendor  may  protect  himself.  He  may  either  retain  the 
deed  until  the  vendee  pays  the  money,  or  select  a  faithful  person  to 
hold  and  deliver  it  according  to  his  instructions.  If  he  selects  an 
unfaithful  person,  he  should  suffer  the  loss  from  a  wrongful  deliv- 
ery, rather  than  an  innocent  purchaser  without  knowledge  of  the 
facts.  In  purchasing  land,  no  one,  in  the  absence  of  anything  that 
might  awaken  suspicion,  is  required,  by  any  rule  of  diligence,  to 
inquire  of  a  person  with  whom  he  deals  whether  his  deed  had  been 
duly  delivered.  Where  a  deed  is  found  in  the  grantee's  hands,  a  de- 
livery and  acceptance  is  always  presumed.  3  Washb.  Real  Prop.  (5th 
Ed.)  p.  312,  pi.  31.  The  fact  that,  under  any  other  rule,  "no  pur- 
chaser is  safe,"  had  a  controlling  influence  with  the  court  in  Bleight  v. 
Schenck,  10  Pa.  285,  292,  51  Am.  Dec.  478.  In  this  case  the  ques- 
tion was  whether  a  deed  had  been  delivered,  the  defendant  being  an 
innocent  purchaser  from  the  vendee  of  the  plaintiff.  In  discussing  the 
case  the  court  used  this  language :  "Here  Curtis,  who,  it  is  alleged, 
delivered  the  deed  contrary  to  his  instructions,  was  the  agent  of  the 
grantor.  If  a  man  employs  an  incompetent  or  unfaithful  agent,  he 
is  the  cause  of  the  loss  so  far  as  an  innocent  purchaser  is  concerned, 
and  he  ought  to  bear  it,  except  as  against  the  party  who  may  be  equally 
negligent  in  omitting  to  inform  himself  of  the  extent  of  the  authority, 
or  may  commit  a  wrong  by  acting  knowingly  contrary  thereto."  And 
die  case  was  disposed  of  according  to  this  principle. 

The  case  on  which  most  reliance  is  placed  by  the  defendant  in  er- 
ror is  that  of  Ogden  v.  Ogden,  4  Ohio  St.  182.  The  facts  are  some- 
what complicated.  It  seems  to  have  grown  out  of  an  agreement  for 
an  exchange  of  lots  between  two  of  the  parties,  each  being  the  equita- 
ble owner  of  his  lot.  The  deed  for  the  lot  of  one  of  them,  David 
Ogden,  was  to  be  delivered  by  the  legal  owner  to  the  other  on  his 
performing  certain  conditions,  and  was  delivered  to  a  third  person, 
to  be  delivered  on  the  performance  of  these  conditions.  It  was  de- 
livered without  the  conditions  being  performed,  and  the  lot  was  then 
mortgaged  by  the  grantee  to  the  defendants  Watson  and  Stroh,  who 
claimed  to  be  innocent  purchasers  for  value.  But  it  was  charged  in 
the  bill  that  they  took  their  mortgages  with  notice,  and  to  cheat  and 
defraud  the  complainant;    and  it  does  not  distinctly  appear  whether 


DELIVERY    AND   ACCEPTANCE   OF   DEEDS  63T 

this  was  true  or  not.  From  the  reasoning  of  the  court  it  would  seem 
that  the  deed  had  been  obtained  from  the  party  holding  it  in  some  sur- 
reptitious manner.  It  is  first  conceded  "that  if  David  reposed  con- 
fidence in  Gilbert,  and  he  violated  that  confidence,  and  delivered  the 
deed,  and  loss  is  to  fall  on  either  David  or  the  mortgagees,  that  David 
should  sustain  that  loss,  and  not  the  innocent  mortgagees."  Instances 
are  then  given  in  which  the  rule  would  be  otherwise, — an  innocent 
purchaser  from  the  bailee  of  a  horse,  or  of  stolen  property,  or  from 
one  who  had  either  stolen  or  surreptitiously  obtained  his  deed.  There 
is  no  room  for  doubt  in  either  of  these  cases.  But  the  court  then  ob- 
serves that,  "if  the  owner  of  land  makes  a  deed  purporting  to  convey 
his  land  to  any  one,  and  such  person  by  fraud  or  otherwise  procures 
the  owner  to  deliver  the  deed  to  him,  a  bona  fide  purchaser  from  such 
fraudulent  grantee,  without  notice  of  the  fraud,  might  acquire  title 
to  the  land."  This,  we  think,  is  equally  clear;  but,  unless  the  deed 
m  the  case  had  been  stolen  or  surreptitiously  obtained,  or  the  mort- 
gagees were  guilty  of  the  fraud  charged,  then,  on  the  reasoning  of 
the  court,  the  decree  should  have  been  in  their  favor. 

If  the  case  is  to  be  understood  as  holding  differently,  then  it  is  not 
in  accord  with  the  later  decision  in  Resor  v.  Railroad  Co.,  17  Ohio 
St.  139.  Here  the  owner  of  a  tract  of  land  contracted  to  sell  it  to 
the  company,  but  refused  to  deliver  the  deed  until  paid.  An  agree- 
ment was  then  made  by  which  the  deed  was  placed  in  the  hands  of 
the  president,  but  it  was  not  to  be  considered  delivered  until  payment 
had  been  complied  with,  and  the  company  went  into  possession.  The 
president  wrongfully  placed  the  deed  on  record,  and  the  company 
then  mortgaged  its  entire  property  to  secure  an  issue  of  bonds.  The 
court  held  the  bondholders  to  be  innocent  purchasers,  and  that  the 
plaintiff  was  estopped  from  setting  up  his  claim  as  against  them.  It 
might  be  claimed  that  the  delivery  by  Resor  was  to  the  purchaser,  the 
company,  and  that  a  deed  cannot  be  delivered  as  an  escrow  to  the 
vendee.  The  latter  statement  is  true.  But,  as  a  matter  of  fact,  it 
was  delivered  to  the  president  of  the  company,  and  not  to  the  com- 
pany itself.  There  is  no  reason  why  the  president  could  not  have 
held  it  as  an  escro'w,  and,  under  the  agreement,  must  be  regarded  as 
having  so  held  it.  Railroad  Co.  v.  IHff,  13  Ohio  St.  235;  Watkins 
V.  Nash,  L.  R.  20  Eq.  262 ;  Insurance  Co.  v.  Cole,  4  Fla.  359.  The 
plaintiff  trusted  the  president  to  hold  the  deed,  and  it  was  his  wrong- 
ful act  that  disappointed  him.  The  supreme  court  of  Indiana,  in  a 
well-considered  case  (Quick  v.  Milligan,  108  Ind.  419,  9  N.  E.  392, 
58  Am.  Rep.  49),  the  facts  of  which  are  very  similar  to  the  case  be- 
fore us,  held,  where  a  deed  is  delivered  to  a  third  person,  to  be  de- 
livered the  grantee,  who  is  already  in  possesSfon  of  the  land,  on  pay- 
ment of  the  purchase  money,  and  is  delivered  without  the  condition 
being  performed,  that  the  vendor  is  estopped,  as  against  an  innocent 
purchaser,  to  set  up  his  title.     See,  also,  and  to  the  same  effect,  the 


638  DEEDS   AND    THEIR    REQUISITES 

following  cases :  Bailey  v.  Crim,  9  Biss.  95,  Fed.  Cas.  No.  734 ;  Haven 
V.  Kramer,  41  Iowa,  382;  Bleight  v.  Schenck,  10  Pa.  285,  51  Am. 
Dec.  478. 

It  is  the  general,  if  not  universal,  rule  of  the  courts  to  protect  the 
innocent  purchaser  of  property  for  value  against  such  vices  in  the 
title  of  their  vendors  as  result  from  fraud  practiced  by  them  in  ac- 
quiring the  property,  for  in  all  such  cases  the  party  complaining  is 
found  to  have  been  guilty  of  some  negligence  in  his  dealings,  or  to 
have  trusted  some  agent,  who  has  disappointed  his  confidence,  and  is 
more  to  blame  for  the  consequences  than  the  innocent  purchaser,  so 
that  his  equity  is  inferior  to  that  of  such  purchaser.  Hence  it  is  that 
the  innocent  purchaser  for  value  from  a  fraudulent  grantee  is  always 
protected  in  his  title  as  against  the  equity  of  the  wronged  grantor.  In 
Hoft'man  v.  Strohecker,  7  Watts  (Pa.)  86,  32  Am.  Dec.  740,  where 
a  sale  had  been  made  under  execution  upon  a  satisfied  judgment,  the 
satisfaction  not  appearing  of  record,  an  innocent  purchaser  of  the 
person  who  purchased  at  the  sale  was  protected  in  his  title,  although 
the  purchaser  at  the  sale  had  knowledge  of  the  facts  and  acquired  no 
title.  A  similar  holding  had  been  made  by  the  same  court  in  Price 
V.  Junkin,  4  Watts  (Pa.)  85,  28  Am.  Dec.  685,  and  in  Fetterman  v. 
Murphy,  4  Watts  (Pa.)  424,  28  Am.  Dec.  729.  In  the  case  of  Price 
v.  Junkin,  it  is  said :  "An  innocent  purchaser  of  the  legal  title,  with- 
out notice  of  trust  or  fraud,  is  peculiarly  protected  in  equity ;  and 
chancery  never  lends  its  aid  to  enforce  a  claim  for  the  land  against 
him." 

Most  of  the  cases  cited  and  relied  on  by  the  defendant  are  not  in 
point.  Where  the  grantee  wrongfully  procures  the  holder  of  a  deed 
as  an  escrow  to  deliver  it  to  him,  he  acquires  no  title,  or  at  least  a 
voidable  one;  but  this  is  a  very  diflierent  case  from  where  a  third 
person  without  notice,  afterwards  and  while  the  grantee  is  in  pos- 
session, deals  with  him  in  good  faith  as  owner.  Again,  it  may  be 
conceded  that  the  delivery  of  a  deed  by  one  who  simply  holds  it  as 
a  depositary  transfers  no  title;  but,  if  he  holds  it  as  an  escrow,  with 
power  to  deliver  it  on  certain  conditions,  a  delivery,  though  wrongful, 
is  not  in  excess  of  his  authority,  for,  in  such  case,  the  act  is  within 
his  authority,  and  binds  the  principal  as  against  an  innocent  party. 
And  so  a  deed  held  in  escrow,  delivered  after  the  death  of  the  prin- 
cipal, passes  no  title.  It  will  readily  appear,  from^  reasons  already 
given,  that  such  cases  are  without  application  to  the  case  under  re- 
view. Here  it  will  be  conceded  that,  as  between  the  grantor  and  the 
grantee,  the  latter  took  no  title,  because  delivered  by  Howard  contrary 
to  his  instructions.  But  the  plaintift'  relies  on  the  fact  that,  as  found, 
he  had  no  knowledge  that  the  deed  had  ever  been  held  as  an  escrow, 
and  in  good  faith  loaned  his  money  and  took  a  mortgage  on  the  land 
to  secure  it,  and  that  the  defendant  is  thereupon  estopped  from  set- 
ting up  his  legal  title  as  against  him. 


DELIVERY   AND   ACCEPTANCE    OF   DEEDS  639 

But  it  is  claimed  that,  as  the  plaintiff  relies  on  an  estoppel,  he  should 
have  pleaded  it.     This  rule,  however,  only  applies  where  the  party 
has  had  an  opportunity  to  do  so.     In  this  case  he  had  none  until  the 
evidence  had  been  introduced.     The  defendant,   in  his   answer  and 
cross-petition,  set  up   that  the  deed   from   him  had  been  placed   in 
escrow,  and  wrongfully  delivered  to  the  grantee,  and  that  the  plain- 
tiff had  knowledge  of  the  facts.     The  plaintiff  then  averred  his  want 
of  any  knowledge  or  belief  as  to  the  facts  stated  by  the  defendant, 
and  denied  them.     The   court,   however,   found   that  the  deed   had 
been  delivered  to  Howard  Colvin  to  be  held  as  an  escrow,  and  was 
by  him  wrongfully  delivered  to  the  grantee,  but  also  found  that  the 
plaintiff  was  ignorant  of  the  facts,  and  an  innocent  purchaser  for 
value  without  notice.     The  object  of  pleading  is  to  inform  the  op- 
posite party  of  the  facts  on  which  the  pleader  relies  as  the  ground 
of  his  claim  or  defense,  and  here,  when  the  plaintiff  denied  knowl- 
edge of  the  facts  as  pleaded  by  the  defendant,  he  fairly  advised  the 
defendant  that  he  relied  on  an  estoppel,  on  the  ground  of  want  of 
notice,  should  the  facts  as  pleaded  be  made  to  appear  in  the  evidence, 
except  as  to  the  matter  of  notice;    for  that  he  was  a  purchaser  for 
value  appeared  from  his  petition,  which  was  taken  as  true,  as  it  was 
not  controverted.     Hence  the  claim  of  the  plaintiff  could  in  no  way 
surprise  the  defendant  unless  he  was  ignorant  of  the  law.     The  first 
opportunity  the  plaintiff  had  to  plead  an  estoppel,  as  against  James 
E.  Colvin,  was  when  the  facts  were  fully  made  to  appear  in  evidence; 
and  he  is  not,  therefore,  precluded  from  doing  so  on  the  facts  as 
found  by  the  court. 

Judgment  reversed,  and  judgment  on  the  facts  for  the  plaintiff  in 
error.^^ 


MATHESON  v.  MATHESON. 
(Supreme  Court  of  Iowa,  1908.    139  Iowa,  511,  117  N.  W.  755.) 

Appeal  from  District  Court,  Buena  Vista  County,  A.  D.  Bailie, 
Judge. 

Action  in  equity  to  establish  the  plaintiff's  rights  in  certain  lands, 
and  for  partition.  Decree  as  prayed,  and  defendants,  except  Buena 
Vista  county,  appeal.    Affirmed. 

Weaver,  J.  The  evidence  shows  with  but  little  substantial  dis- 
pute the  following  facts:    On  March  1,  1894,  Samuel  Matheson,  be- 

13  There  must  be  a  deliveiT  of  a  deed  in  the  grantor's  lifetime  in  order  to 
make  it  effective.  Consequently,  a  deed  found  among  the  grantor's  papers 
after  his  death,  with  no  evidence  of  its  delivery,  is  of  no  effect,  although  it 
was  fully  executed  and  acknowledged.  Wiggins  v.  Lusk,  12  111.  132  (1850). 
See,  however,  Cummings  v.  Glass,  162  Pa.  241,  29  Atl.  848  (1894),  where,  al- 
though a  deed  was  found  among  the  grantor's  papers  in  his  safe,  yet  there  was 
evidence  to  show  that  it  had  been  delivered  in  his  lifetime. 


040  DEEDS   AND    THEIR    REQUISITES 

ing  then  somewhat  advanced  in  age,  married  the  plaintiff  herein.  On 
June  25,  1905,  the  said  Matheson  died  intestate,  leaving  the  plaintiff, 
his  widow,  and  several  children  by  a  former  marriage  his  heirs  at 
law.  Prior  to  the  date  of  his  marriage,  the  deceased  owned  a  quarter 
section  of  land  in  Buena  Vista  county,  upon  which  there  was  a  mort- 
gage indebtedness  of  $600  owing  to  the  school  fund  of  said  county. 
Shortly  before  his  marriage  to  plaintiff,  Matheson  visited  the  office 
of  Hon.  E.  E.  Mack,  a  practicing  lawyer  at  Storm  Lake,  and  exe- 
cuted a  deed  in  due  form  to  his  intended  wife,  Elizabeth  Harvey, 
for  the  west  one-half  of  said  tract  of  land.  This  instrument  he  left 
in  the  hands  of  Mr.  Mack,  with  instructions  to  keep  and  give  it  to 
the  grantee.  Later,  and  after  the  marriage  had  taken  place,  Matheson 
called  upon  Mr.  Mack  and  asked  for  the  deed,  but  Mack  declined  to 
surrender  it,  and  soon  thereafter  Matheson  appeared  again,  accom- 
panied by  his  wife,  and  the  paper  was  thereupon  delivered  to  her. 
The  only  evidence  as  to  what  became  of  it  is  the  testimony  of  plain- 
tiff, who  says  that,  after  reaching  home  on  the  day  the  deed  was  de- 
livered to  her,  Matheson  asked  where  it  was,  and  she  handed  it  to 
him,  and  that  he  then  and  there,  without  her  consent  and  against 
her  protest,  put  it  in  the  stove,  and  destroyed  it.  She  had  never  read 
the  deed,  and  could  not  of  her  own  knowledge  state  its  contents.  Mr. 
Mack  swears  that  it  was  the  ordinary  form  of  warranty  deed,  and 
he  is  corroborated  in  part  by  another  witness  who  claims  to  have  read 
the  paper  while  in  Mack's  possession,  and  recognized  it  as  an  ordi- 
nary deed  of  conveyance. 

The  only  testimony  in  any  way  tending  to  discredit  the  claim  that 
the  conveyance  was  absolute  is  the  testimony  of  several  witnesses  that 
at  an  interview  with  several  members  of  her  husband's  family,  in 
which  there  was  some  effort  to  compromise  the  matter  without  litiga- 
tion, plaintiff  said  she  understood  the  deed  gave  her  a  life  estate  in 
the  property.  Reliance  is  also  placed  on  the  fact  that,  after  her  hus- 
band's death,  plaintiff  listed  the  entire  quarter  section  as  part  of  his 
estate,  but  she  explains  that  this  was  done  because  of  her  under- 
standing that  the  destruction  of  the  deed  deprived  her  of  any  right 
thereunder.  After  the  marriage  and  during  the  lifetime  of  Mathe- 
son, plaintiff  united  with  him  in  making  a  new  note  and  mortgage  to 
Buena  Vista  county  for  the  same  indebtedness  secured  by  the  mort- 
gage first  above-mentioned.  She  says  she  signed  the  mortgage  as 
surety  only,  and  there  is  nothing  tending  to  show  that  she  received 
any  consideration  therefor  other  than  the  extension  of  time  of  payment 
of  her  husband's  debt. 

Upon  this  showing,  the  trial  court  found  for  plaintiff,  quieting  her 
title  in  the  west  half  of  the  quarter  section,  giving  her  a  widow's  share 
in  the  remaining  lands,  and  making  the  debt  due  the  county  prima- 
rily a  charge  on  that  portion  of  the  lands  received  by  the  heirs  at  law. 

1.  Appellants  argue  that  there  is  no  sufficient  showing  of  the,  de- 


DELIVERY   AND   ACCEPTANCE    OF    DEEDS  641 

livery  and  acceptance  of  the  deed.  The  point  is  not  sustained  by  the 
record.  The  testimony  of  Mr.  Mack,  which  is  without  substantial 
dispute  by  any  person,  shows  a  complete  and  perfect  delivery.  When_ 
the  deed  was  placed  in  his  hands  for  the  benefit  of  the  grantee,  no 
other  delivery  was  required  to  pass  the  title.  White  v.  Watts,  118 
Iowa,  549,  92  N.  W.  660.  It  is  an  elementary  proposition  in  the 
law  of  deeds  that  the  delivery  to  a  third  person  for  the  grantee  without 
any  reservation  by  the  grantor  of  a  right  to  recall  it  is  sufficient  in 
law,  and  effects  a  complete  transfer  of  the  title  to  the  property  which 
is  the  subject  of  the  conveyance.  Taft  v.  Taft,  59  Mich.  185,  26  N. 
W.  426,  60  Am.  Rep.  291 ;  O'Neal  v.  Brown,  67  Ga.  707.  But  coun- 
sel say  there  must  be  an  acceptance  in  order  to  make  perfect  the  de- 
livery, and  there  is  no  proof  here  that  plaintiff  accepted  the  deed. 
Where  a  deed  or  instrument  purporting  to  convey  valuable  property 
and  creating  no  obligation  or  burden  to  be  assumed  by  the  grantee 
is  delivered  to  the  manual  possession  of  the  grantee  himself  or  to 
some  third  person  for  such  grantee's  benefit,  his  acceptance  is  pre- 
sumed until  the  contrary  is  shown.  White  v.  Watts,  supra;  Chapira 
V.  Nott,  203  III.  341,  67  N.  E.  833;  Brown  v.  Westerfield,  47  Neb. 
399,  66  N.  W.  439,  53  Am.  St.  Rep.  532.  There  is  nothing  in  the 
record  to  overcome  this  presumption  with  respect  to  the  deed  now  in 
controversy.  On  the  contrary,  such  evidence  as  there  is  tends  to- 
strengthen  and  support  that  inference.  The  fact  that  the  grantee 
had  not  read  the  paper,  and  had  the  impression  that  it  was  for  a  life- 
estate,  does  not  deprive  her  of  the  benefit  of  the  rule  if  she  did  not 
consent  to  the  destruction  of  the  deed,  and  asserted  her  rights  there- 
under when  she  became  informed  of  its  true  nature. 

2.  It  is  true  that  the  destruction  of  an  unrecorded  deed  by  the  par- 
ties thereto  with  the  intention  by  both  to  abandon  the  conveyance 
and  restore  the  title  to  the  grantor  creates  such  an  equitable  right 
or  interest  in  the  latter  that  the  grantee  will  be  considered  as  holding 
the  title  in  trust  only  for  the  benefit  of  the  grantor.  Blaney  v.  Hanks, 
14  Iowa,  400;  Happ  v.  Happ,  156  111.  183,  41  N.  E.  39.  But  the 
facts  developed  in  this  case  do  not  bring  it  within  the  rule  here  refer- 
red to.  There  is  no  showing  whatever  that  the  deed  was  destroyed 
with  the  concurrence  or  consent  of  the  plaintiff,  and  we  see  no  way 
to  avoid  the  conclusion  that  the  title  to  the  land  therein  described  be- 
came and  remained  vested  in  her.  The  title  being  once  vested,  the 
destruction  of  the  deed  by  the  grantor  after  the  delivery  was  no  more 
than  the  destruction  of  the  written  evidence  of  the  conveyance,  and 
had  no  effect  in  law  or  in  equity  upon  the  title  of  the  grantee  to  the 
property  conveyed. 

3.  The  appellants  seek  to  defeat  the  plaintiff's  claim  of  title  by  an  ap- 
plication of  the  rule  concerning  the  election  of  remedies.  This  conten- 
tion is  grounded  upon  the  proposition  that  plaintiff  having  originally 

Bubd.Cas.Real  Prop. — 41 


042  DEEDS    AND    THEIR    REQUISITES 

listed  the  land  as  a  part  of  her  husband's  estate,  and  having  obtained 
her  allowance  for  a  year's  support  under  the  statute  (Code,  §*3314), 
and  having  in  her  original  petition  in  this  proceeding  asked  to  have 
her  dower  established  in  this  with  other  lands,  she  must  be  held  to 
have  elected  to  accept  the  rights  of  a  widow  in  the  land,  instead  of 
asserting  title  thereto  under  her  deed.  But  we  are  of  the  opinion 
that  the  rule  relied  upon  has  no  proper  application  here.  In  listing  the 
property  of  the  estate,  the  plaintiff  was  not  instituting  any  action  or 
proceeding  for  the  determination  of  her  rights  in  or  to  such  prop- 
erty. The  disputed  question  of  title  to  land,  as  between  the  widow  and 
heirs,  could  not  under  our  practice  be  determined  by  probate  proceed- 
ings for  the  settlement  of  the  estate  where  the  sale  of  such  property 
is  not  required  for  the  payment  of  debts  or  legacies.  Generally  speak- 
ing, that  question  may  be  settled  only  by  some  direct  action  at  law 
or  in  equity  in  which  the  issue  could  be  properly  litigated.  When, 
therefore,  plaintiff  as  administratrix  of  her  husband's  estate,  acting 
mistakenly  or  otherwise  as  to  her  rights  in  the  premises,  listed  the 
land,  she  cannot  be  said  to  have  elected  to  take  or  pursue  a  remedy  for 
the  determination  of  her  own  rights  therein.  It  may  be  admitted 
that  she  might  under  some  circumstances  so  conduct  herself  with  ref- 
erence to  the  matter  of  administration  as  to  estop  her  from  thereafter 
claiming  some  right  or  rights  which  might  otherwise  be  successfully 
asserted,  but  in  this  instance  there  is  no  showing  that  the  heirs  or 
any  of  them  have  been  misled  to  their  prejudice  by  the  act  of  plain- 
tiff in  listing  the  land,  and  no  ground  of  estoppel  appears.  The  mere 
fact  that  the  widow  through  misapprehension  of  her  legal  rights  per- 
mits exempt  property, to  get  into  the  hands  of  the  administrator  as 
assets  of  the  deceased  husband's  estate  has  been  held  not  to  defeat  her 
right  to  said  property.  Estate  of  Ring,  132  Iowa,  216,  109  N.  W.  710. 
Nor  do  we  see  how  the  mistaken  listing  of  lands  of  the  widow  as 
belonging  to  the  estate  will  estop  her  from  asserting  her  right  thereto 
when  the  mistake  is  discovered,  in  the  absence  of  any  showing  or 
suggestion  that  the  heirs  have  been  led  by  her  act  to  incur  any  ex- 
pense or  have  been  placed  in  any  more  unfavorable  position  than  they 
would  have  occupied  had  she  asserted  her  right  at  the  outset.  Neither 
can  the  fact  that  at  the  beginning  of  this  proceeding  plaintiff  claimed 
but  a  distributive  share  in  the  land  be  held  such  an  election  as  to  estop 
her  from  amending  her  pleading  and  enlarging  her  claim  to  include 
the  entire  estate  therein.  She  came  into  court  asking  to  have  her 
rights  as  widow  established  in  all  of  the  lands  of  which  her  husband 
died  seised,  and  at  first  included  this  land  with  others  in  her  petition. 
Later,  when,  as  the  evidence  tends  to  show,  she  for  the  first  time  dis- 
covered that  her  rights  under  the  deed  were  not  lost  by  its  destruction, 
she  amended  her  petition  by  limiting  her  claim  for  distributive  share 
to  those  lands  not  included  in  said  deed,  and  asked  that  her  title  to  this 
particular  tract  be  quieted  against  the  claims  of  the  heirs. 


DELIVERY  AND  ACCEPTANCE  OF  DEEDS  643 

It  is  very  clear  that  these  facts  do  not  present  a  case  where  a  plain- 
tiff upon  the  same  transaction  or  state  of  facts  may  pursue  either  one 
of  two  or  more  remedies.  If,  as  she  claims,  the  deed  to  plaintiff  had 
been  delivered,  and  she  had  not  concurred  in  its  destruction,  she  was 
not  put  to  a  choice  between  inconsistent  remedies,  and  there  can  be 
no  occasion  for  resorting  to  the  rule  respecting  an  election.  While 
she  had  two  rights  of  action — one  for  the  establishment  of  her  rights 
as  grantee  in  the  deed  and  another  for  the  establishment  of  her  rights 
as  widow  in  lands  of  which  her  husband  died  seised — the  two  rights 
were  based  upon  different  states  of  fact,  and  pertained  to  different 
tracts  of  land.  Her  right  of  dower  or  distributive  share  could  attach 
to  no  land  other  than  that  of  which  Matheson  died  seised,  and,  if 
after  beginning  her  action  she  discovered  and  asserted  her  right  to 
the  entire  fee  in  one  tract,  there  is  nothing  to  preclude  her  from  pur- 
suing such  course  in  the  absence  of  any  sufficient  plea  and  proof  of 
matter  amounting  to  an  estoppel. 

It  is  not  seriously  contended  that  the  court  erred  in  relieving  the 
plaintiff  from  any  personal  liability  save  as  surety  for  her  husband's 
bond  or  debt  to  the  school  fund.  The  testimony  clearly  shows  that 
the  indebtedness  originated  long  before  the  marriage  with  plaintiff, 
and  that  her  husband  was  the  principal  debtor.  This,  of  course,  does 
not  relieve  her  from  liability  to  the  county,  but  she  is  entitled  to  be 
protected  against  loss  by  reason  of  such  liability  in  the  distributive 
share  of  the  proceeds  arising  from  the  partition  sale  of  the  land. 

We  are  satisfied  with  the  correctness  of  the  decree  as  entered  by 
the  trial  court ;  and  it  is  affirmed. 


644  CONDITIONS,  COVENANTS,  AND   WARRANTIES   IN   DEEDS 


CONDITIONS,  COVENANTS,  AND  WARRANTIES   IN 

DEEDS 

I.  Conditions  in  General  * 


See  Frank  v,  Stratford-Handcock,  reported  herein,  ante,  p.   191, 
for  distinction  between  conditions  and  covenants. 


II.  Building  Restrictions  * 


RIVERBANK  IMPROVEMENT  CO.  v.  BANCROFT. 

(Supreme  Judicial  Court  of  Massachusetts,  1911.    209  Mass.  217,  95  N.  E.  216, 
34  L.  R.  A.  (N.  S.)  730,  Ann.  Cas.  1912B,  450.) 

Bill  by  the  Riverbank  Improvement  Company  and  others  against 
Charles  F.  Bancroft  and  others  to  restrain  a  violation  of  a  restric- 
tion contained  in  a  deed.  Decree  for  plaintiffs,  forbidding  the  use 
of  a  building  as  a  garage  in  violation  of  the  restriction,  and  for  its 
removal  unless  used  for  a  purpose  not  inconsistent  with  the  restric- 
tion. 

Hammond,  J.  The  physical  facts  as  to  the  size,  situation  and  con- 
struction of  the  building  in  question  are  not  in  dispute,  and  the  de- 
fendants admit  that  the  building  is  being  used  by  them  as  a  garage 
for  their  own  automobiles  and  that  unless  restrained  by  legal  process 
they  intend  to  continue  such  use.  The  main  question  on  the  merits  is 
whether  in  the  building  itself  or  in  such  a  use  of  it  there  is  anything 
inconsistent  with  any  of  the  restrictions  to  which  the  land  is  subject. 

Those  restrictions  were  imposed  in  the  deed  of  the  Riverbank  Im- 
provement company,  hereinafter  called  the  company,  to  George  Wheat- 
land (under  whom  the  defendants  claim  by  mesne  conveyances),  dated 
August  11,  1899,  and  duly  recorded;  and  so  far  as  material  to  the 
question  before  us  they  are  as  follows : 

"First.  No  buildings  other  than  dwelling  houses  (which  word  shall 
include  club  houses),  with  the  usual  outbuildings  appurtenant  thereto, 
shall  be  erected,  placed,  or  used  upon  the  said  land.  Such  outbuild- 
ings shall  be  erected  only  on  the  southerly  side  of  said  twenty-foot 
street  or  way,  and  no  portion  of  said  outbuildings  shall  be  higher  than 
eight  feet  above  the  grade  of  the  street  in  front  of  the  premises  hereby 

1  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  290. 

2  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  292. 


BUILDING   KESTRICTIONS  645 

conveyed.    No  stable  of  any  kind,  private  or  otherwise,  shall  be  erected 
or  maintained  on  any  portions  of  said  land.     *     *     * 

"Second.  No  building  erected  on  said  land  shall  be  used  for  any 
manufacturing     *     *     *      or  mechanical  purposes. 

"Third.  No  building,  except  the  customary  outhouses  to  dwell- 
ings, shall  be  erected  or  placed  upon  the  said  land,  the  exterior  walls 
of  which  shall  be  composed  of  any  other  material  than  brick,  stone  or 
iron.     *     *     * 

"Fifth.  No  buildings,  other  than  the  usual  outbuildings  appurtenant 
to  dwelling  houses,  shall  be  erected  or  placed  on  said  land  northerly 
of  a  line  parallel  with  and  distant  seventy  feet  north  from  the  build- 
ing line  established  in  the  [fourth]  restriction." 

The  plaintiffs  contend  that  the  first  restriction  has  been  violated 
in  two  respects,  namely,  first,  that  the  building  is  not  of  the  kind 
described  as  the  "usual  outbuildings  appurtenant"  to  a  dwelling  house, 
and,  second,  that  it  is  a  stable  within  the  meaning  of  that  word  as 
used  in  the  restriction. 

It  becomes  necessary  to  look  into  the  deed  and  the  circumstances 
under  which  it  was  made.  About  1890  the  plaintiff  company  acquired 
title  to  a  large  parcel  of  land  and  laid  it  out  in  building  lots.  Block 
B,  of  which  the  land  conveyed  in  the  above  mentioned  deed  to  Wheat- 
land was  a  part,  contained  28  lots.  Restrictions  like  those  in  this  deed 
had  been  imposed  by  the  company  in  the  deeds  of  these  lots  except 
that  in  the  deed  of  lot  No.  1,  which  was  the  first  lot  conveyed,  the 
clause  prohibiting  the  erection  or  maintenance  of  a  stable  does  not 
appear.  The  deeds  were  all  in  one  standard  form,  and  each  con- 
tained a  recital  that  the  restrictions  "are  intended  and  shall  be  for  the 
benefit  of  the  grantor  and  of  the  owner  or  owners  from  time  to  time 
of  all  the  land  aforesaid  constituting  said  Block  B.  shown  on  said 
plan,  and  none  other."  It  is  apparent  from  the  form  of  the  deeds 
and  from  the  other  facts  shown,  that  the  company  intended  that  this 
territory,  situated  upon  the  south  bank  of  the  Charles  river  and  at 
some  distance  from  the  business  section  of  the  city,  should  be  a  fine 
residential  district,  and  that  it  took  great  pains  to  frame  the  deeds 
in  a  manner  calculated  to  make  this  intent  effectual  not  only  for  the 
present  but  also  for  the  future.  This  was  to  be  a  place  for  dwelling 
houses  and  the  "usual  outbuildings  appurtenant"  thereto,  and  (with 
the  exception  of  club  houses)  for  them  alone. 

Under  the  law  existing  at  the  time  those  restrictions  were  im- 
posed they  were  to  have  force  only  for  30  years.  Rev.  Laws,  c.  134, 
§  20.  We  are  dealing  therefore  not  with  restrictions  unlimited  as  to 
use,  but  limited  to  30  years,  and  the  deed  is  to  be  construed  as  if 
the  term  of  30  years  had  been  expressly  inserted  therein.  The  restric- 
tions are  to  be  interpreted  in  the  light  of  the  circumstances  existing 
at  the  time  they  were  imposed;  and  the  words  "usual  outbuildings 
appurtenant"  (to  dwelling  houses)  as  well  as  the  word  "stable"  are  to 


64j6        conditions,  covenants,  and  wakranties  in  deeds 

be  construed  as  including  only  such  buildings  as  were   fairly  indi- 
cated by  the  respective  words  at  that  time. 

Under  this  rule  of  interpretation  is  this  building  a  stable?  In  Web- 
ster's Dictionary,  edition  of  1864,  a  stable  is  defined  as  "a  house  or 
building  for  horses  or  other  beasts";  in  Webster's  edition  of  1903, 
as  "a.  house,  shed  or  building  for  beasts  to  lodge  and  feed  in,  espe- 
cially, a  building  or  apartment  with  stalls  for  horses,  as  a  horse  stable 
or  cow  stable" ;  and  in  the  edition  of  1910  in  practically  the  same 
language;  in  the  Century  Dictionary,  as  "a  building  or  an  inclosure 
in  which  horses,  cattle,  and  other  domestic  animals  are  lodged,  and 
which  is  furnished  with  stalls,  troughs,  racks,  and  bins  to  contain 
their  food  and  necessary  equipments ;  in  a  restricted  sense,  such  a 
building  for  horses  and  cows  only ;  on  a  still  narrower  and  now  the 
most  usual  sense,  such  a  building  for  horses  only";  in  the  Standard 
Dictionary,  edition  of  1895,  as  a  "building  or  part  of  a  building  set 
apart  for  lodging  and  feeding  horses  or  cattle,  especially  one  fitted 
with  stalls,  fastenings,  etc.,  also  often  for  storing  hay  or  putting  up 
vehicles ;  sometimes  specifically  carriage-stable,  cow-stable,  etc."  In 
36  Cyc.  812,  and  in  26  Am.  &  Eng.  Encyc.  of  Law,  page  154,  it  is  de- 
fined as  "a  house,  shed  or  building  for  beasts  to  lodge  and  feed  in." 
See  also  Dugle  v.  State,  100  Ind.  259. 

While  it  is  true,  as  stated  by  the  plaintiffs,  that  in  the  Standard  Dic- 
tionary, editions  of  1895  and  1908,  a  stable  is  defined  as  a  building 
often  used  for  putting  up  vehicles,  and  that  in  the  Standard  and  Cen- 
tury Dictionaries  a  garage  is  defined  as  "a  stable  for  motor  cars" 
and  "a  building,  as  a  stable  for  the  storing  of  automobiles  or  other 
horseless  vehicles,"  we  nevertheless  think  that  the  word  "stable"  as 
commonly  used  and  understood  at  the  time  of  the  imposition  of  those 
restrictions,  especially  when  contrasted  with  other  buildings  usually 
appurtenant  to  a  dwelling  house,  carried  the  idea  not  only  of  a  build- 
ing but  also  the  presence  of  domestic  animals  like  horses  or  cattle  as 
its  occupants,  and  that  such  is  the  meaning  of  this  word  in  the  re- 
striction. Accordingly  it  must  be  held  that  the  building  is  not  a 
stable  within  the  meaning  of  the  restriction.  And  this  is  so  even  if, 
as  argued  by  the  plaintiffs,  a  garage  is  as  objectionable  as  a  stable. 

The  next  question  is  whether  the  building  is  of  the  kind  which 
was  usually  appurtenant  to  dwelling  houses  at  the  time  the  restriction 
was  imposed.  If  it  is  not,  then  its  erection  was  in  violation  of  the 
restriction.  It  is  to  be  borne  in  mind  that  we  are  dealing  with  a 
proposed  residential  district  of  a  high  grade,  and  that  this  district  is 
not  in  a  country  town,  but  in  a  city,  a  district  to  be  divided  into  build- 
ing lots  and  to  be  covered  substantially  with  dwelling  houses.  What- 
ever buildings  were  usually  needed  and  occupied  as  aids  to  the  use  of 
the  dwelling  houses  might  be  erected  and  occupied  as  such  aids.  At 
the  time  these  restrictions  were  put  on,  the  garage  was  not  the  kind 
of  building  usually  appurtenant  to  a  dwelling  house.  Its  erection  was 
a  violation  of  the  restriction. 


BUILDING  RESTRICTIONS  647 

It  is  urged  by  the  defendants  that  the  restriction  is  against  public 
poHcy,  and  that  consequently  a  court  of  equity  will  not  lend  its  aid 
in  its  enforcement;  and  they  cite  some  cases  where,  because  the  re- 
strictions have  been  against  public  policy  or  were  whimsical  and  tend- 
ed to  place  an  unreasonable  hindrance  to  the  use  of  land,  equity  has 
refused  to  interfere.  But  this  case  is  clearly  distinguishable.  The 
automobile  is  a  large  machine,  and  it  is  noisy,  especially  when  start- 
ing. The  odor  of  gasoline  by  which  many  of  them  are  propelled  is 
penetrating  and  disagreeable;  and  there  can  be  no  doubt  that  the 
noises  and  odors  attendant  upon  the  care  and  action  of  such  machines, 
especially  when  stored  so  near  to  dwelling  houses  as  in  this  case,  may 
be  annoying  to  a  person  desiring  a  quiet  home.  If,  in  these  days  of 
noise  and  bulging,  intrusive  activities,  a  man  who  has  been  in  con- 
fusion all  day  desires  to  have  a  home  where,  awake  or  asleep,  he  can 
pass  his  hours  in  quiet  and  repose,  there  is  no  reason  of  public  policy 
why,  if  he  can  get  it,  he  should  not  have  it.  Nor  is  there  any  rea- 
son why  provision  should  not  be  made  for  a  collection  of  such  homes 
in  close  proximity  to  each  other.  No  citation  of  authorities  is  needed 
to  show  that  in  this  commonwealth  such  a  restriction  is  reasonable  and 
not  against  public  policy. 

It  is  further  urged  that  the  plaintiffs  have  shown  no  right  to  prose- 
cute this  bill.  But  this  position  is  untenable.  Pillsbury,  one  of  the 
plaintiffs,  is  an  owner  of  land  for  the  benefit  of  which  the  restrictions 
were  imposed,  and  the  company  which  imposed  the  restrictions  may, 
even  if  no  longer  an  owner,  appear  to  aid  in  their  enforcement  for  the 
benefit  of  their  grantees. 

The  final  question  respects  the  relief  to  be  granted.  It  is  urged 
by  the  defendants  that  the  building  itself  does  not  in  any  way  con- 
flict with  the  restrictions;  that  neither  in  size,  location  nor  in  the 
materials  of  which  it  is  constructed  does  it  violate  the  restrictions, 
and  that  the  only  violation  consists  in  its  use.  And  hence  they  say  that 
the  decree  should  not  order  the  removal  of  the  building,  but  only  for- 
bid its  use  as  a  garage.  While  it  appeared  that  the  building  was 
erected  principally  for  the  automobile,  yet  it  also  appeared  that  it 
has  been  "used  as  a  place  to  keep  vegetables,  double  windows,  blinds, 
and  other  minor  household  things,  and  was  so  intended  to  be  used  at 
the  time  of  its  erection";  that  "it  has  also  been  used  as  a  place  [in 
which]  to  freeze  ice  cream  and  do  other  small  household  things"  ;  and 
that  "during  the  summer  barrels  and  other  things  about  the  yard  are 
locked  up  there."  Whether  or  not,  as  claimed  by  the  plaintiffs,  these 
facts  are  contradictory  of  the  pleadings,  there  can  be  no  doubt  that 
they  may  be  properly  taken  into  consideration  on  the  question  of  the 
kind  of  relief.  It  further  appears  that  the  building  is  not  a  nuisance 
and  does  not  obstruct  the  view  from  the  windows  of  the  houses  in 
Block  B. 

Even  if  the  defendants  should  be  ordered  to  take  this  building 
down  upon  the  ground  that  it  was  originally  constructed  for  a  use  in- 


648  CONDITIONS,  COVENANTS,  AND   WARRANTIES   IN   DEEDS 

^xDnsistent  with  the  restriction,  it  is  manifest  that  they  might  immedi- 
ately erect  one  exactly  its  duplicate  for  the  purposes  for  which,  as 
above  stated,  it  was  intended  to  be  used  in  part  and  has  been  so  used. 
But  it  is  to  be  noted  that  the  restriction  forbade  the  erection  of  the 
building  for  a  garage  as  well  as  its  use  for  that  purpose. 

Under  these  circumstances  we  think  justice  will  be  done  by  a  decree 
which  will  simply  compel  the  defendants  to  cease  the  illegal  use,  and 
further  to  remove  the  building  unless  it  be  used  for  a  purpose  not  in- 
consistent with  the  restriction.  There  should  be  a  decree  for  the 
plaintiffs  forbidding  the  use  of  this  building  as  a  garage  or  a  store- 
house for  an  automobile,  and  for  its  removal  unless  it  be  used  for  a 
purpose  not  inconsistent  with  the  restriction,  and  for  costs.  So  or- 
dered. 


III.  Covenants  in  General ' 
1.  Re;al  AND  Personal  CovKnants 


.  CONDUITT  V.  ROSS. 
(Supreme  Court  of  Indiana,  18S5.    102  Ind.  166,  26  N.  E.  198.) 

Appeal  from  superior  court,  Marion  county. 

Mitchell,  J.  On  the  26th  day  of  April,  1875,  Julia  A.  Ross  and 
John  Hauck  were  the  owners  of  adjoining  lots  in  the  city  of  In- 
dianapolis. Pursuant  to  a  written  agreement  entered  into  by  Mrs. 
Ross  and  her  husband  on  the  one  part,  and  Mr.  Hauck  on  the  other, 
she  placed  one-half  the  width  of  the  south  wall  of  a  four-story  brick 
and  stone  building  which  she  erected  on  her  lot  on  the  north  margin 
of  the  Hauck  lot.  After  erecting  the  building  she  conveyed  the  lot, 
with  the  improvements  thereon,  to  George  P.  Bissell,  reserving,  by  a 
stipulation  contained  in  her  deed,  the  right  to  receive  compensation 
from  adjoining  property  owners  for  the  building,  or  use  of  existing 
party-walls.  Subsequently  the  appellant  became  the  owner  of  the 
Hauck  lot,  and  in  1882  commenced  the  erection  of  a  building  thereon, 
and  attached  the  same  to  and  used  the  wall  erected  by  Mrs.  Ross. 
Refusing  to  make  payment,  this  suit  was  commenced  to  recover  one- 
half  the  original  cost  of  the  wall.  Upon  issues  made,  a  trial  was  had, 
which  resulted  in  a  finding  and  judgment  for  the  plaintiff. 

Counsel  for  appellant  rest  their  argument  for  a  reversal  of  this 
judgment  mainly  upon  the  proposition  that  the  agreement  between 
Hauck  and  Mrs.  Ross  was  purely  personal  to  them,  and  that  Con- 
duitt,  by  using  the  wall  erected  in  pursuance  thereof,  came  under  no 
obligation  whatever  in  consequence  of  such  use.  They  insist  fur- 
ther, that,  if  liable  at  all,  the  extent  of  his  liability  was  the  actual  value 

«  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §§  294-303. 


COVENANTS   IN   GENERAL  649 

of  the  wall  when  used,  and  not  its  original  cost.  The  rights  and  ob- 
ligations of  the  parties  must  be  determined  by  a  construction  of  the 
agreement  already  referred  to,  which  is  of  the  following  tenor : 

"This  agreement  between  John  Hauck  of  the  first  part,  and  Julia 
A.  Ross,  and  Norman  M.  Ross,  her  husband,  of  the  second  part,  wit- 
nesseth :  That,  in  consideration  that  the  parties  of  the  second  part 
shall  erect  a  substantial  brick  wall,  twelve  inches  in  thickness,  and 
four  stories  high,  on  the  line  dividing  the  property  of  John  Hauck 
and  Julia  A.  Ross,  in  square  87,  in  the  city  of  Indianapolis,  Marion 
county,  Indiana,  which  line  is  twelve  feet  south  of  the  south  line  of 
lot  No.  4,  in  Morris  Morris'  subdivision  of  square  87,  in  the  city  of 
Indianapolis,  and  which  wall  is  to  stand  six  inches  in  width  upon  the 
ground  of  said  Hauck,  and  six  inches  upon  the  ground  of  said  Ross, 
and  is  to  run  back  the  depth  of  said  Ross'  present  building,  and  may 
at  any  time  be  extended  further  back  on  the  same  line  the  full  depth 
of  said  lots,  by  either  party,  the  full  consent  of  said  Hauck  to  the 
erection  of  said  walls  being  hereby  granted: 

"Now,  therefore,  said  John  Hauck  hereby  binds  himself,  his  heirs, 
executors,  administrators,  and  assigns,  that  whenever,  after  the  erec- 
tion of  said  wall  or  walls  by  the  party  of  the  second  part,  said  Hauck, 
his  heirs,  executors,  administrators,  or  assigns,  shall,  in  any  build- 
ing he  or  they  may  erect  on  the  present  ground  of  said  Hauck,  use 
said  wall,  or  any  part  thereof,  or  attach  any  part  of  his  or  their  build- 
ing thereto,  then  the  said  Julia  A.  Ross  shall  be  paid,  without  relief 
from  valuation  or  appraisement  laws,  the  full  value  of  one-half  the 
original  cost  of  said  wall  or  walls.  And  it  is  further  agreed  that  nei- 
ther party  shall  have  the  right  to  so  use  any  part  of  said  wall  or  walls 
as  to  weaken  or  endanger  the  same;  and  that  said  Hauck,  his  heirs, 
executors,  administrators,  or  assigns  shall  not,  in  any  wise  whatever, 
use  or  attach  to  said  wall  or  walls  so  to  be  erected  by  said  Ross,  until 
the  said  value  and  costs  of  one-half  thereof  shall  be  ascertained,  and 
paid  or  tendered  to  said  Julia  A.  Ross. 

"In  witness  whereof,  we  have  hereunto  set  our  hands  and  seals, 
this  26th  day  of  April,  1875, 

"[Signed]  John  Hauck.  [Seal] 
"Julia  A.  Ross.  [Seal] 
"N.  M.  Ross.        [Seal.]" 

This  agreement  was  duly  acknowledged,  and  recorded  in  the  mis- 
cellaneous records  of  Marion  county,  and  it  is  averred  that  the  ap- 
pellant had  actual  notice  of  it  at  the  time  he  purchased. 

The  liabiHty  of  the  appellant  depends  upon  whether  the  contract  set 
out  constituted  a  continuing  covenant,  which  became  annexed  to,  and 
ran  with,  the  Hauck  lot.  If  it  did,  he  is  liable  according  to  its  terms; 
if  it  did  not,  he  is  liable  in  this  form  of  action  for  nothing. 

In  considering  whether  a  covenant  is  one  which  does,  or  does  not, 
run  with  land,  there  are  always  embraced  the  following  inquiries : 


650  CONDITIONS,  COVENANTS,  AND    WARRANTIES    IN    DEEDS 

(1)  Is  the  covenant  one  which,  under  an}'  circumstances,  may  run  with 
land?  (2)  Was  it  the  intention  of  the  parties,  as  expressed  in  the 
agreement,  that  it  should  so  run? 

Doubtless,  a  covenant  which,  from  its  character,  might  run  with 
the  land,  may  be  so  restricted  in  terms  as  to  make  it  purely  personal, 
and  available  to  the  parties  to  it,  and  no  other.  So,  too,  a  covenant 
may  contain  apt  words  to  make  it  a  continuing  covenant,  yet  if  its 
nature  or  the  subject-matter  of  it  is  such  that  it  does  not  concern  some 
interest  or  estate  in  land,  either  existing  or  created  by  it,  it  cannot 
run  with  land.  When  an  instrument  conveys  or  grants  an  interest  or 
right  in  land,  and  at  the  same  time  contains  a  covenant  in  which  a 
right  attached  to  the  estate  or  interest  granted  is  reserved,  or  when 
the  grantee  covenants  that  he  will  do  some  act  on^the  estate  or  inter- 
est granted  which  will  be  beneficial  to  the  grantor,  either  as  respects 
his  remaining  interest  in  the  lands  out  of  which  an  interest  is  granted, 
or  lands  adjacent  thereto,  such  covenant  is  one  which  may  become 
annexed  to,  and  run  with,  the  land,  and  bind  its  owners  successively. 
When  such  grant  is  made,  and  contains  a  covenant  so  expressed  as 
to  show  that  it  was  reasonably  the  intent  that  it  should  be  continuing, 
it  will  be  construed  as  a  covenant  running  with  the  land.  A  covenant 
which  may  run  with  the  land  must  have  relation  to  the  interest  or 
estate  granted,  and  the  act  to  be  done  must  concern  the  interest  cre- 
ated or  conveyed.  In  Bally  v.  Wells,  3  Wils.  25,  it  was  said :  "When 
the  thing  to  be  done,  or  omitted  to  be  done,  concerns  the  lands  or 
estate,  that  is  the  medium  which  creates  the  privity  between  the  plain- 
tiff and  defendant." 

By  the  contract  under  consideration,  Mrs.  Ross  acquired  the  right 
to  enter  upon  the  Hauck  lot  and  erect,  and  permanently  maintain 
thereon,  a  party-wall.  This  was  a  grant  to  her  of  an  interest  in  land, 
and  was  of  such  a  character  that  a  perpetual  covenant  might  be  an- 
nexed to  it.  Snowden  v.  Wilas,  19  Ind.  10,  81  Am.  Dec.  370;  Haz- 
lett  V.  Sinclair,  76  Ind.  488,  40  Am.  Rep.  254;  1  Smith  Lead.  Cas. 
(8th  Ed.)  161,  162.  In  consideration  of  this  grant  to  her,  she  cove- 
nanted to  do  an  act  beneficial  to  the  remaining  interest  of  Hauck. 
That  act  was  the  erection  of  a  wall  so  situated  as  that  one-half  of 
it  should  rest  on  the  margin  of  his  lot  and  the  other  half  on  hers, 
thus  devoting  each  estate  to  the  mutual  support  of  the  party-wall. 
She,  at  the  same  time,  covenanted  that  when  she  should  be  reim- 
bursed one-half  of  the  cost  of  the  wall,  he  or  his  grantees  should  ac- 
quire a  reciprocal  interest  in  her  lot,  and,  in  legal  effect,  become  owner 
of  one-half  the  party-wall.  This  agreement  created  Avhat  has  been 
aptly  termed  mutual,  or  cross,  easements  in  favor  of  each  in  the  lot 
of  the  other,  and  was  an  arrangement  mutually  beneficial  to  both 
properties.  Fitch  v.  Johnson,  104  111.  Ill  ;  Roche  v.  Ullman,  Id.  11; 
Bronson  v.  Coffin,  108  Mass.  175,  11  Am.  Rep.  335;  Thomson  v. 
Curtis,  28  Iowa,  229.     It  contained,  therefore,  all  the  elements  neces- 


COVENANTS   IN    GENEEAL  651 

sary  to  a  covenant  capable  of  running  with  the  land.  Hazlett  v. 
Sinclair,  supra;  Richardson  v.  Tobey,  121  Mass.  457,  23  Am.  Rep. 
283;  Standish  v.  Lawrence,  111  Mass.  Ill;  Maine  v.  Cumston,  98 
Mass.  317;  Savage  v.  Mason,  3  Cush.  (Mass.)  500;  Brown  v.  Mc- 
Kee,  57  N.  Y.  684;  Keteltas  v.  Penfold,  4  E.  D.  Smith  (N.  Y.)  122; 
Piatt  V.  Eggleston,  20  Ohio  St.  414;  Masury  v.  Southworth,  9  Ohio 
St.  340;  Bertram  v.  Curtis,  31  Iowa,  46;  Norfleet  v.  Cromwell,  70 
N,  C.  634,  641,  16  Am.  Rep.  787. 

It  is  apparent,  too,  that  it  was  the  intention  of  the  parties  that  the 
covenant  to  pay  should  run  with  the  land.  The  words  used  in  that 
connection  are  those  usually  and  aptly  employed  for  the  purpose : 
"John  Hauck  hereby  binds  himself,  his  heirs,  executors,  administra- 
tors, and  assigns,  that  whenever,  after  the  erection  of  said  wall  or 
walls  by  the  party  of  the  second  part,  said  Hauck,  his  heirs,  execu- 
tors, administrators,  or  assigns,  shall,  in  any  building  he  or  they  may 
erect,"  etc.,  "they  will  pay,"  etc.  A  continuing  covenant  may  exist 
without  the  word  "assigns,"  or  "grantees,"  but  when  these  or  equiva- 
lent words  are  used,  they  become  persuasive  of  the  intent  of  the  par- 
ties. Van  Rensselaer  v.  Hays,  19  N.  Y.  68,  75  Am.  Dec.  278.  It  was 
the  manifest  purpose  of  the  parties  that  the  right  to  receive  payment 
for  the  wall  should  be  personal  to  Mrs.  Ross.  It  was  stipulated  that 
payment  should  be  made  to  Julia  A.  Ross.  It  results  that  the  com- 
plaint was  sufficient,  and  that  the  second  paragraph  of  answer,  in  which 
it  was  alleged  that  the  wall,  by  reason  of  injuries  sustained  from 
fire,  was  worth  much  less  than  the  original  cost,  was  insufficient,  and 
the  respective  rulings  of  the  court  were  not  erroneous.  The  covenant 
being  one  which  ran  with  the  land,  when  the  appellant  availed  him- 
self of  its  benefits  he  became  related  to  it  as  the  original  covenantor, 
and  it  became  the  measure  of  his  obligation. 

We  think  it  is  fairly  deducible  from  the  complaint  that  the  appel- 
lant derived  his  title  through  Hauck.     Judgment  affirmed,  with  costs. 

On  Rehearing. 

(June  13,  1885.) 

Mitchell,  C.  J.  The  learned  counsel  for  appellant,  in  support  of 
their  petition  for  a  rehearing,  suggest  that  it  was  decided  in  Bloch 
V.  Isham,  28  Ind.  37,  92  Am.  Dec.  287;  Taylor  v.  Owen,  2  Blackf. 
301,  20  Am.  Dec.  115,  and  Hazlett  v.  Sinclair,  7(>  Ind.  488,  40  Am. 
Rep.  254,  that  an  instrument  of  the  character  in  question  here  does 
not  convey  or  grant  an  interest  in  land.  We  entertain  a  different  view 
of  the  cases  mentioned.  Bloch  v.  Isham,  supra,  was  a  suit  by  the 
grantee  of  the  first  builder  to  recover  from  the  second  builder  one- 
half  the  cost  of  a  party-wall,  and  it  was  held  there,  as  we  hold  here, 
that  the  right  to  receive  payment  for  the  wall  was  personal  to  the 
first  builder.  It  is  true  it  was  said  in  that  case  that  it  turned  "upon  the 
solution  of  the  question  as  to  whether  Isham's  agreement  to  pay  for 


052  CONDITIONS,  COVENANTS,  AND   WARRANTIES   IN   DEEDS 

one-half  of  the  party-wall  is  a  covenant  running  with  the  land."  Un- 
der the  Iowa  statute  it  was  held,  in  the  cases  cited  in  the  principal 
opinion,  that  an  easement  is  created,  and  that  both  the  obligation  to 
pay  and  the  right  to  receive  payment  run  with  the  land.  We  think  the 
covenant  to  pay  might  well  run  with  the  land,  while  the  right  to  re- 
ceive payment  might,  as  it  was  held  in  Bloch  v.  Isham,  supra,  be 
personal  to  the  first  builder.  This  must  depend  upon  the  contract, 
in  the  absence  of  statutory  regulation.  It  was  said  in  that  case  that 
the  agreement  there  under  consideration  embraced,  substantially,  the 
provisions  of  the  Pennsylvania  statute.  Under  the  statute  of  that 
state,  the  second  builder  is  always  held  liable  to  pay  the  first  builder 
which,  we  think,  is  the  result  of  the  agreement  in  this  case'. 

So  far  as  Bloch  v.  Isham,  supra,  holds  that  the  agreement  was  per- 
sonal to  the  first  builder,  and  did  not  inure  to  the  benefit  of  his  gran- 
tee, which  was  the  only  question  before  the  court,  we  are  strictly  in 
accord  with  it.  What  was  said  beyond  that  must  be  regarded  as  having 
resulted  from  the  distinction  which  is  to  be  made  between  the  agree- 
ment there  under  review,  and  that  which  we  are  considering.  The 
covenant,  as  it  is  there  recited  by  the  court,  is :  "Schenck  and  Isham 
*  *  *  entered  into  a  written  agreement,  whereby  Schenck  acquired 
the  right  to  build  one  of  the  walls  of  a  brick  store,  then  in  process  of 
erection  on  his  own  lot,  with  one-half  of  its  thickness  resting  on  the 
^ot  of  Isham ;  and  Isham  acquired  for  himself,  his  heirs  or  assigns, 
the  right  to  use  said  wall  by  joining  a  building  thereon,  and  agreed 
)"or  himself  and  them  to  pay  one-half  of  the  original  cost  of  said  wall, 
when  he  or  they  should  use  the  same."  In  effect,  Isham  personally 
.igreed  for  himself  and  his  grantees  to  pay  when  he  or  they  should  use 
the  wall.     In  the  case  before  us  Hauck  made  no  such  agreement. 

It  may  be  said,  moreover,  that  the  case  of  Weld  v.  Nichols,  17  Pick. 
(Mass.)  538,  which  is  regarded  as  conclusive  of  the  question  there 
involved,  will  be  found  to  have  a  very  remote,  if  any,  bearing  on  the 
question  we  are  considering  under  this  agreement.  We  have  said  this 
much  to  indicate  that,  so  far  as  the  point  involved  in  Bloch  v.  Isham, 
supra,  was  concerned,  we  are  in  accord  with  it,  and  beyond  that  it 
must  be  considered  as  distinguished  by  the  character  of  the  agreement. 
As  to  Taylor  v.  Owen,  supra,  the  principles  involved  are  essentially 
different,  and  for  support  of  the  proposition  that  a  continuing  cove- 
nant may  be  annexed  to  an  easement  in  land,  and  that  there  is  in  con- 
sequence such  privity  of  estate  as  makes  the  appellant  liable  on  the 
covenant,  we  need  go  no  further  than  Hazlett  v.  Sinclair,  supra. 

The  petition  for  a  rehearing  is  overruled. 


COVENANT  AGAINST  INCUMBRANCES  653 


IV.  Covenant  against  Incumbrances* 


GEORGE  A.  LOWE  CO.  v.  SIMMONS  WAREHOUSE  CO. 

(Supreme  Court  of  Utah*  1911.    39  Utah,  395,  117  Pac.  874, 
Ann.  Cas.  1913E,  246.) 

Appeal  from  district  court,  Second  district ;   J.  A.  Howell,  Judsre 

Action  by  the  George  A.  Lowe  Company  against  the  Simmons 
Warehouse  Company.  From  a  judgment  for  plaintiff,  defendant  ao- 
peals.     Modified,  and  remanded  for  judgment  for  plaintiff,  as  stated. 

Straup,  J.  The  plaintiff  on  the  26th  day  of  January,  1909,  pur- 
chased from  the  defendant  a  parcel  of  land  69  by  228  feet  in  Ogden 
City.  The  deed  was  made  and  delivered  on  the  11th  day  of  Febru- 
ary of  the  same  year.  It  was  a  statutory  short-form  warranty  deed. 
Such  a  deed  has  the  effect  of  warranting  the  premises  conveyed  free 
from  all  incumbrances.  The  controversy  is  over  the  taxes  for  the 
year  1909.  The  defendant  claimed  that  they  were  no  lien  on  the 
property  at  the  time  of  the  purchase  and  conveyance,'  and  refused  to 
pay  them.  The  plaintiff  paid  them,  and  then  brought  this  action  on 
breach  of  warranty  to  recover  from  the  defendant  the  amount  paid 
by  plaintiff,  with  interest  and  an  attorney's  fee.  The  plaintiff  was 
given  a  judgment  for  the  full  demand,  from  which  the  defendant  has 
prosecuted  this  appeal. 

Three  questions  are  presented:  (1)  Were  the  taxes  an  incumbrance 
when  the  land  was  purchased?  (2)  If  so,  was  there  a  breach  before 
the  taxes  became  delinquent  and  the  property  sold  for  nonpayment 
of  them?  (3)  Was  the  plaintiff  entitled  to  an  attorney's  fee  as  part 
damages  ? 

Under  our  tax  laws  the  assessor  is. required  "before  the  first  Mon- 
day of  May  in  each  year"  to  ascertain  the  names  of  all  taxable  in- 
habitants and  all  property  in  the  county  subject  to  taxation,  and  to 
"assess  such  property  to  the  person  by  whom  it  was  owned  or  claimed 
or  in  whose  possession  or  control  it  was  at  twelve  o'clock  m.  of  the 
second  Monday  in  January  next  preceding  and  its  value  on  that  date." 
Before  the  first  Monday  in  May  the  assessor  is  required  to  list  in  the 
assessment  book  all  taxable  property  in  the  county,  the  name  of  the 
person  to  whom  it  is  assessed,  a  description  of  the  property,  and  its 
cash  value.  Before  the  first  Monday  in  May  the  assessor  must  de- 
liver the  assessment  book  to  the  treasurer,  who  is  required  to  furnish 
a  notice  to  each  taxpayer.  Between  the  first  and  the  fourth  Monday 
in  June,  the  board  of  county  commissioners  is  required  to  examine 
the  assessment  books  and  equalize  the  assessment  of  property  in  the 
county,  and  is  given  power  to  increase  or  lower  any  assessment  con- 

*  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  299. 


G54  CONDITIONS,  COVENANTS,  AND   WARRANTIES  IN   DEEDS 

tained  in  the  assessment  book  and  to  make  and  enter  new  assessments, 
and  between  the  first  Monday  in  July  and  the  second  Monday  in  Au- 
gust to  fix  the  rate  of  county  taxes.  Before  the  first  Monday  in 
August  the  State  Board  of  Equalization  is  required  to  determine  the 
rate  of  state  taxes.  In  the  month  of  July  city  councils  and  boards 
of  trustees  are  required  to  determine  Jhe  rate  of  the  general  city  or 
town  tax,  levy  the  same,  and  certify  the  rate  and  levy  to  the  county 
auditors.  Taxes  are  due  on  the  first  Monday  in  September,  and  be- 
come delinquent  on  the  15th  of  November.  On  the  15th  day  of  De- 
cember the  treasurer  is  required  to  expose  for  sale  sufficient  of  the 
delinquent  real  estate  to  pay  the  taxes  and  costs.  It  is  further 'pro- 
vided that  "every  tax  upon  real  property  is  a  lien  against  the  property 
assessed ;  and  every  tax  due  upon  improvements  upon  real  estate 
assessed  to  others  than  the  owner  of  the  real  estate  is  a  lien  upon  the 
land  and  improvements;  which  several  liens  attach  as  of  the  second 
Monday  in  January  in  each  year." 

The  property  purchased  by  the  plaintiff  from  the  defendant  was  a 
part  of  a  larger  tract  owned  by  the  defendant.  The  whole  of  the 
tract,  including  the  portion  sold  to  the  plaintiff,  was  assessed  for  the 
year  1909  in  the  name  of  the  defendant.  The  defendant,  claiming  that 
it  was  not  liable  for  the  taxes  on  the  portion  sold  to  the  plaintiff,  re- 
quested the  assessor  to  segregate  such  portion  from  the  portion  still 
owned  by  it.  The  assessor  so  segregated  the  property  in  the  latter 
part  of  October,  determined  the  tax  due  on  the  portion  sold  to  the 
plaintiff,  and  sent  it  a  notice,  who  on  the  2d  day  of  November  paid 
the  tax,  after  a  demand  on  the  defendant  to  pay  it,  and  its  refusal 
to  do  so.  The  defendant  now  contends  that  the  assessor  had  no  au- 
thority to  make  such  segregation  at  the  time  when  it  was  made.  It 
cannot  be  heard  to  complain  of  that,  for  the  assessor's  action  in  that 
regard  was  induced  by  and  was  taken  on  the  defendant's  request. 

Its  chief  contention,  however,  is  that  the  tax,  not  assessed  and 
levied,  the  rate  not  determined,  and  the  tax  not  due  until  after  the 
purchase  by  plaintiff,  was  not  a  lien  on  the  property  when  the  pur- 
chase was  made,  and  that  a  tax  or  an  assessment  cannot  become  a 
lien  or  incumbrance  upon  real  estate  within  the  covenant  of  warranty 
until  the  tax  is  assessed  and  levied,  and  the  amount  thereof  ascer- 
tained. The  case  of  Dowdney  v.  Mayor,  etc.,  54  N.  Y.  186,  supports 
such  a  view.  We  think  that  would  be  true  here  were  it  not  for  the 
statute  providing  that  the  lien  attaches  "as  of  the  second  Monday  in 
January  of  each  year."  Plaintiff's  purchase  was  after  that.  Because 
of  the  statute  we  think  the  taxes  for  the  year  1909  were  a  lien  on 
the  property  conveyed,  and  constituted  an  incumbrance  within  the 
covenants  of  warranty.  Blossom  v.  Van  Court,  34  Mo.  390,  86  Am. 
Dec.  114;  McLaren  v.  Sheble,  45  Mo.  130;  Martin  County  v.  Drake, 
40  Minn.  137,  41  N.  W.  942;  State  v.  Northwestern  Tel.  Exch.  Co., 
80  Minn.  17,  82  N.  W.  1090. 


COVENANT  AGAINST  INCUMBRANCES  655 

The  further  contention  that  no  breach  arose  until  after  the  tax  be- 
came deHnquent  and  the  property  exposed  to  sale,  or  until  the  plain- 
tiff was  evicted,  is,  under  the  circumstances,  untenable.  The  plain- 
tiff paid  the  tax  a  month  after  it  was  due,  and  after  the  defendant 
itself  had  refused  to  pay  it,  and  had  disclaimed  all  liability  in  respect 
of  it.  The  plaintiff,  to  protect  the  title  which  the  defendant  had  war- 
ranted to  it,  was  not  required,  under  the  circumstances,  to  sit  by  and 
wait  until  the  tax  became  delinquent  and  the  property  sold,  but  was 
entitled  to  pay  it  after  it  became  due  and  after  the  defendant  had  re- 
fused to  pay  it,  and  to  protect  the  title  with  as  little  expense  as  pos- 
sible. MacFarland  &  Dupre  v.  Lehman  et  al.,  38  La.  Ann.  351,  Maloy 
V.  Holl  et  al.,  190  Mass.  277,  76  N.  E.  452;  Witte  v.  Pigott  (Tex. 
Civ.  App.)  55  S.  W.  753.  That  the  plaintiff  did,  and  that  was  its 
duty.  Neither  the  case  of  Bruington  v.  Barber,  63  Kan.  28,  64  Pac. 
963,  nor  Leddy  v.  Enos,  6  Wash.  247,  33  Pac.  508,  34  Pac.  665,  make 
against  such  a  view.  In  the  first  the  tax  title  which  the  vendee  pur- 
chased was  itself  invalid,  and  therefore  furnished  no  basis  for  a  suc- 
cessful attack  on  the  vendee's  ownership  or  possession.  In  the  sec- 
ond, the  covenantee  did  not  rely  on  the  implied  warranties  of  the  stat- 
ute, but  on  the  warranties  stated  and  expressed  in  the  deed  of  con- 
veyance. The  failure  to  pay  the  taxes  complained  of  was  held  not 
to  be  a  breach  of  the  expressed  warranties. 

The  court,  in  addition  to  allowing  the  plaintiff  a  judgment  for  the 
amount  of  taxes  paid  by  it  and  interest,  also  allowed  $75  attorney's 
fee.  We  do  not  see  any  authority  to  allow  an  attorney's  fee.  In  some 
jurisdictions  attorney's  fees  incurred  by  the  covenantee  •  in  an  action 
defending  or  asserting  his  title  in  good  faith  are  recoverable  by  him 
from  the  covenantor  in  a  subsequent  action  on  the  covenant.  8  A. 
&  E.  Ency.  L.  (2d  Ed.)  190;  11  Cyc.  1178.  But  counsel  fees  in  the 
action  against  the  covenantor  are  not.     11  Cyc.  1178. 

As  a  general  rule,  in  an  action  for  breach  of  the  covenant  against 
incumbrances,  where  the  plaintiff  purchased  or  extinguished  the  out- 
standing incumbrance,  he  is  entitled  to  recover  with  interest  the  rea- 
sonable price  which  he  fairly  and  necessarily  paid  for  it,  provided  it 
does  not  exceed  the  amount  paid  by  him  to  the  covenantor  or  the 
value  of  the  estate.  11  Cyc.  1165;  14  Cent.  Dig.  §  240;  6  Dec.  Dig. 
§  132.  We  think  he  is  not  entitled  also  to  attorney's  fee  in  the  action 
against  the  covenantor  for  breach  of  the  covenant. 

The  judgment  of  the  court  below  is  therefore  modified  in  that  par- 
ticular, and  the  case  remanded,  with  directions  to  enter  a  judgment  in 
favor  of  the  plaintiff  for  the  amount  paid  by  it,  with  interest,  and 
costs.     Neither  party  is  given  costs  on  the  appeal. 

Frick,  C.  J.,  and  McCarTy,  J.,  concur. 


656  .        CONDITIONS,  COVENANTS,  AND  WARRANTIES   IN   DEEDS 

GEISZLER  V.  DE  GRAAF. 

(Court  of  Appeals  of  New  York,  1901.    166  N.  Y.  339,  59  N.  E.  993,  82  Am.  St. 

Kep.  659.) 

Appeal  from  Supreme  Court,  Appellate  Division,  First  Department. 

Action  by  Mary  Geiszler  against  Amanda  M.  De  Graaf  and  others. 
Judgment  for  plaintiff.  From  an  order  of  the  appellate  division  (60 
N.  Y.  Supp.  651)  reversing  the  judgment  and  granting  a  new  trial, 
plaintiff  appeals.     Affirmed. 

O'BriKn,  J.  The  plaintiff  is  the  remote  grantee  of  lands  which  the 
defendants'  testator  owned  on  the  29th  day  of  January,  1892,  and  on 
that  day  conveyed  to  one  Knabe  by  deed  with  full  covenants.  At  the 
time  of  this  conveyance  the  lands  were  incumbered  by  a  local  assess- 
ment amounting  to  $224.41,  with  interest.  On  the  12th  day  of  March, 
1892,  Knabe  conveyed  the  lands  to  one  Breirly,  expressly  subject  to 
the  assessment,  and  on  the  2d  day  of  October,  1893,  the  latter  con- 
veyed to  the  plaintiff,  with  a  covenant  against  incumbrances.  On  the 
23d  day  of  October,  1896,  the  plaintiff  was  obliged  to  and  did  pay 
the  assessment,  amounting  at  that  date  to  $341.31,  in  order  to  dis- 
charge the  lien  upon  the  land ;  and  he  now  seeks  to  recover  that  sum, 
with  interest,  from  the  personal  representatives  of  the  original  gran- 
tor from  whom  the  title  was  derived. 

The  plaintiff  cannot  recover  without  establishing  two  propositions 
of  law :  (1)  That  the  benefit  of  the  covenant  against  incumbrances 
contained  in  the  deed  of  the  defendants'  intestate  to  Knabe  passed  to 
the  plaintiff  through  the  intermediate  conveyances ;  in  other  words, 
that  it  ran  with  the  land.  (2)  That  the  continuity  of  the  covenant 
was  not  interrupted  or  its  benefits  extinguished  as  to  the  plaintiff 
by  the  fact  that  his  immediate  grantor  took  the  title  expressly  subject 
to  the  assessment  or  incumbrance  which  is  the  basis  of  the  action. 
The  right  of  a  remote  grantee  of  real  estate  to  recover  damages  for 
breach  of  the  covenants  in  the  deed  has  been  exhaustively  discussed 
in  a  recent  case  in  this  court,  and  the  point  in  that  case  was  settled 
only  after  four  appeals,  and  then  by  a  bare  majority  of  this  court. 
But  in  that  case  the  question  that  we  are  now  concerned  with  was 
not  involved,  since  the  action  was  upon  the  covenant  for  quiet  enjoy- 
ment and  warranty  made  by  a  stranger  to  the  title,  and  it  was  held 
that  under  the  circumstances  of  the  case  the  covenant  of  the  stranger 
was  personal,  and  did  not  run  with  the  land.  The  case  turned  upon 
the  point  that  there  was  no  such  privity  of  estate  or  contract  between 
the  husband  who  had  joined  with  the  wife  in  the  covenant  and  the 
plaintiff  as  would  attach  the  covenant  to  the  land,  and  carry  liability 
through  the  chain  of  title  to  a  remote  grantee.  Mygatt  v.  Coe,  152  N. 
Y.  457,  46  N.  E.  949,  57  Am.  St.  Rep.  521 ;  Id.,  147  N.  Y.  456,  42 
N.  E.  17;  Id.,  142  N.  Y.  78,  36  N.  E.  870,  24  L.  R.  A.  850;  Id., 
124  N.  Y.  212,  26  N.  E.  611,  11  L.  R.  A.  646.    That  was  a  very 


COVENANT   AGAINST   INCUMBRANCES 


657 


different  question  from  the  one  now  before  us,  which  is  simply  whether 
the  covenant  against  incumbrances  runs  with  the  land,  so  as  to  enable 
a  remote  grantee  to  recover  upon  it. 

We  can  decide  the  case  upon  another  question,  comparatively  in- 
significant, and  leave  the  principal  controversy  open  for  litigants  to 
grope  their  way  through  conflicting  decisions  to  some  conclusion  as 
to  what  the  law  is  on  the  subject.  But  the  right  of  a  remote  grantee 
to  recover  for  breach  of  the  covenant  against  incumbrances  is  a  ques'- 
tion  arising  almost  every  day,  and  a  court  of  last  resort  should  meet 
it  when  presented,  and  settle  the  law  one  way  or  the  other. 

It  was  the  general  rule  of  the  common  law  that  all  covenants  for 
title  ran  with  the  land  until  breach.  In  this  state  it  has  been  held 
that  a  breach  of  the  covenants  of  seisin,  of  right  to  convey,  and 
?,gainst  incumbrances  occurred,  if  at  all,  upon  delivery  of  the  deed, 
while  those  for  quiet  enjoyn^ent,  warranty,  and  for  further  assurance 
were  not  broken  until  an  eviction,  actual  or  constructive.  Rawle,  Cov. 
(5th  Ed.)  §  202,  and  note.  And  it  has  been  generally  held  that  those 
of  the  former  class  do  not  run  with  the  land,  while  the  latter  do. 
The  foundation  of  this  distinction  is  not  clearly  traceable  among  the 
early  English  decisions.  The  principal  reason  for  it,  however,  seems 
to  have  been  that  at  common  law  no  privity  of  estate  or  tenure  existed 
between  a  covenantor  and  a  remote  covenantee,  and,  therefore,  when 
a  breach  of  a  covenant  of  title  occurred,  if  it  was  not  such  a  cove- 
nant as  was  affixed  to  the  land  and  ran  with  it,  it  could  not  be  taken 
advantage  of  by  a  remote  covenantee  or  a  stranger  to  the  original 
covenant,  since  it  was,  as  to  him,  a  mere  chose  in  action,  and  at  com- 
mon law  choses  in  action  were  not  assignable.  But  now  choses  in 
action  are  assignable,  and  the  question  is  whether  the  ancient  law  con- 
cerning the  covenant  against  incumbrances  has  survived  the  reasons 
upon  which  it  was  founded. 

The  operation  of  the  common-law  rule  upon  the  grantee  seeking  to 
enforce  the  covenant  against  incumbrances  was  always  inconvenient, 
and  the  rule  itself  exceedingly  illogical.  While  it  was  held  that  the 
breach  occurred  upon  delivery  of  the  deed,  it  was  also  held  that 
the  covenantee  could  not  recover  more  than  nominal  damages  until 
he  had  paid  off  the  incumbrance,  or  had  been  actuallv  or  construc- 
tively evicted.  Delavergne  v.  Norris,  7  Johns.  358,  5  Am.  Dec.  281 ; 
Hall  v.  Dean,  13  Johns.  105;  Stanard  v.  Eldridge,  16  Johns.  254; 
Grant  v.  Tallman,  20  N.  Y.  191,  75  Am.  Dec.  384;  McGuckin  v.  Mil- 
bank,  152  N.  Y.  297,  46  N.  E.  490.  It  was  virtually  held  that,  when 
the  incumbrance  was  a  money  charge  which  the  grantee  could  remove, 
there  were  two  breaches  of  the  covenant, — one  nominal,  entitling  the 
party  to  but  nominal  damages,  and  the  other  substantial,  to  be  made 
good  by  the  actual  damages  sustained, — and  an  action  and  recovery 
for  the  first  breach  was  no  bar  to  an  action  and  recovery  for  the  sec- 
Burd.Cas.Real  Pbop. — i2 


G5S  CONDITIONS,  COVENANTS,  AND    WARRANTIES    IN   DEEDS     • 

ond.  Eaton  v.  Lyman,  30  Wis.  41 ;  Id.,  33  Wis.  34.  This  rule  did 
not  apply  to  permanent  incumbrances  which  the  covenantee  could 
not  remove,  such  as  easements  and  the  like,  since  he  had  the  right  in 
those  cases  to  bring  his  action  immediately  on  the  breach,  and  re- 
cover just  compensation  for  the  real  injury. 

A  learned  writer,  commenting  on  the  condition  of  the  law  of  cove- 
nants as  it  formerly  existed,  stated  the  situation  quite  accurately  in  the 
following  language :  Vlt  is  evident  from  these  cases  that  the  current 
of  American  authority  tends,  with  but  little  exception,  towards  the 
position  that  on  total  breach  a  covenant,  though  annexed  to  the  realty, 
becomes  a  merely  personal  right,  which  remains  with  the  covenantee 
or  his  executors,  and  does  not  descend  with  the  land  to  heirs,  nor  run 
with  it  on  any  future  assignment  to  third  parties.  The  result  of  this 
doctrine,  as  generally  applied  in  this  country,  is  to  deprive  covenants 
which,  like  those  for  seisin  or  against  incumbrances,  if  not  good,  are 
broken  instantaneously,  of  all  efficacy  for  the  protection  of  the  title,  in 
the  hands  of  an  assignee,  even  when  the  loss  resulting  from  the  breach 
has  fallen  solely  upon  him.  Thus  the  right  of  action  on  covenants, 
originally  intended  for  the  benefit  of  the  inheritance  in  all  subsequent 
hands,  is  denied,  under  this  course  of  decisior;,  to  the  purchaser  of  the 
land,  although  the  party  really  injured."  1  Smith,  Lead.  Cas.  p.  192, 
note  by  Hare  &  Wallace. 

In  England  the  law  became  so  uncertain  in  this  respect,  as  the 
result  of  conflicting  decisions  (Kingdon  v.  Nottle,  1  Maule  &  S.  355 ; 
Id.,  4  Maule  &  S.  53;  Spoor  v.  Green,  L.  R.  9  Exch.  99),  that  the 
controversy  was  set  at  rest  by  the  enactment  of  a  statute  which  pro- 
vided that  the  covenants  should  run  with  the  land  unless  otherwise 
restricted  in  the  conveyance.  44  &  45  Vict.  c.  41,  §  7.  The  same 
result  has  been  accomplished  in  most  of  our  sister  states,  either  by 
judicial  decision  or  by  statute,  where  the  covenant  against  incum- 
brances runs  with  the  land.  In  this  state,  since  the  enactment  of  the 
Code  making  choses  in  action  assignable,  it  has  been  held  that  the  cove- 
nant against  incumbrances  passes  with  the  land  through  conveyances 
to  a  remote  grantee.  Coleman  v.  Bresnaham,  54  Hun,  619,  8  N.  Y. 
Supp.  158;  Clarke  v.  Priest,  21  App.  Div.  174,  47  N.  Y.  Supp.  489. 
But  it  has  been  held  in  the  case  at  bar  that  it  does  not,  and  that  prop- 
osition is  based  upon  the  common-law  rule  and  upon  a  former  decision 
of  the  same  court.  Building  Co.  v.  Jcncks,  19  App.  Div.  314,  46  N.  Y. 
Supp.  2. 

With  this  conflict  of  views  concerning  the  nature  and  effect  of  the 
covenant  against  incumbrances,  and  the  remedy  for  a  breach  of  it,  this 
court  should  adopt  the  rule  best  adapted  to  present  conditions,  and 
which  seems  most  likely  to  conform  to  the  intention  of  the  parties, 
r.nd  to  accomplish  the  purpose  for  which  the  covenant  itself  is  made. 
The  covenant  is  for  the  protection  of  the  title,  and  there  is  no  good 
reason  why  it  should  not  be  held  to  run  with  the  land,  like  the  cove- 


COVENANT   AGAINST   INCUMBRANCES  659 

nant  of  warranty  or  quiet  enjoyment.  The  principle  which  was  at 
the  foundation  of  the  common-law  rule  that  choses  in  action  were 
not  assignable  having  become  obsolete,  there  is  no  reason  that  I  can 
perceive  why  the  rule  should  survive  the  reason  upon  which  it  was 
founded.  We  hold,  therefore,  that  the  covenant  against  incumbrances 
attaches  to  and  runs  with  the  land,  and  passes  to  a  remote  grantee 
through  the  line  of  conveyances,  whether  there  is  a  nominal  breach 
or  not  when  the  deed  is  delivered. 

But  in  this  particular  case  there  is  a  fatal  obstacle  to  the  plaintiff's 
right  to  recover  upon  the  covenant.  The  plaintiff's  immediate  grantor, 
as  we  have  seen,  purchased  expressly  subject  to  the  incumbrance; 
and,  while  he  owned  the  land,  he  could  not  take  advantage  of  the 
original  covenant  made  by  the  defendants'  testator.  The  effect  of  his 
purchase,  subject  to  the  assessment,  was  to  relieve  the  prior  grantors 
from  any  liability  to  him  on  the  covenant.  Presumptively,  he  was 
allowed  in  the  purchase  to  deduct  the  amount  of  the  assessment  from 
the  purchase  price,  and  he  was  therefore  furnished  by  his  grantor  with 
the  money  to  pay  the  assessment;  and  when  he  took  the  land,  and 
was  furnished  with  the  money  to  pay  the  incumbrance,  the  obligation 
of  the  covenant  was  discharged  and  extinguished.  He  could  not  call 
upon  any  prior  covenantor  to  pay  the  assessment,  when  they  had  fur- 
nished him  with  the  funds  to  pay  it  himself.  Vrooman  v.  Turner, 
69  N.  Y.  280,  25  Am.  Rep.  195.  It  is  true  that  he  did  not  pay,  but 
conveyed  to  the  plaintiff  with  a  covenant  against  incumbrances.  But 
the  plaintiff  acquired  only  such  rights  as  his  immediate  grantor  could 
assert  against  prior  grantors.  The  plaintiff's  grantor  did  not  trans- 
mit to  him  any  cause  of  action  against  the  defendants.  The  covenant 
in  the  plaintiff's  deed  is  a  new  covenant,  and  not  the  assignment  of 
an  old  one.  On  the  new  covenant  the  plaintiff's  grantor  is  liable,  but 
the  liability  extends  only  to  him,  and  cannot,  through  him,  extend  to 
prior  parties.  The  plaintiff  is  under  the  same  disability  as  his  grantor, 
since  he  is  in  privity  with  him.  For  these  reasons,  the  order  should 
be  afifirmed,  and  judgment  absolute  ordered  for  defendants  on  the  stip- 
ulation, with  costs. 

Parker,  C.  J.,  and  Haight,  Landon,  Culi^en,  and  Werner,  JJ., 
concur.     Gray,  J.,  concurs  in  result. 

Ordered  accordingly.^ 

B  Generally  in  this  country,  the  covenant  against  incumbrances  stands  alone 
— that  is,  as  a  separate  and  distinct  covenant — and  is  not,  as  in  England,  reg- 
ularly made  a  part  of  the  covenant  for  quiet  enjoyment.  It  may,  of  course, 
be  incorporated  in  such  a  covenant,  in  which  case  it  vpould  run  with  the  land, 
and  would  accrue  to  the  benefit  of  even  a  remote  grantee.  See  Post  v.  Campau, 
42  Mich.  90,  3  N.  W.  272  (1879).  When  the  covenant  stands  alone,  however,  it 
is  regai'ded  as  a  covenant  in  priesenti,  broken,  if  at  all,  when  made,  and  not 
running  with  the  land.  McPike  v.  Heaton,  131  Cal.  109,  63  Pac.  179,  82  Am. 
St.  Rep.  335  (1900) ;    Smith  v.  Richards,  155  Mass.  79,  28  N.  E.  1132  (1891). 


GGO  ABSTRACTS   OF   TITLE 


ABSTRACTS  OF  TITLE 
I.  Duties  and  Liabilities  of  Abstracters  * 


WALKER  V.  BOWMAN. 

(Supreme  Court  of  Oklahoma,  1910.     27  Okl.  172,  111  Pac.  319,  30  L.  R.  A. 

[N.  S.]  642,  Ann.  Cas.  1912B,  S39.) 

On  rehearing.     Reversed. 

For  former  opinion,  see  105  Pac.  649. 

Dunn,  C.  J.  This  case  presents  error  from  the  district  court  of 
Oklahoma  county,  and  is  an  action  brought  by  plaintiff  in  error  as 
plaintiff  against  C.  J.  Bowman  and  G.  W.  Stephenson,  doing  business 
under  the  firm  name  of  Bowman  &  Stephenson,  and  certain  sureties 
on  their  bond  as  abstracters.  To  the  petition  a  demurrer  was  filed  on 
the  ground  that  the  same  did  not  state  facts  sufficient  to  constitute 
a  cause  of  action,  which  the  court  sustained,  from  which  action  the 
appeal  is  prosecuted.  From  the  petition  it  appears  that  the  plaintiff 
employed  and  paid  the  principal  defendants  herein  to  prepare  for  her 
an  abstract  to  a  certain  tract  of  land  which  she  desired  to  purchase. 
She  procured  the  abstract  for  the  purpose  of  ascertaining  the  condi- 
tion of  the  title.  Prior  to  that  date  an  attachment  had  been  run  against 
the  land,  and  was  an  existing  lien  at  the  time  the  abstract  was  pre- 
pared and  delivered,  but  was  not  shown  on  the  abstract.  Thereafter 
plaintiff,  relying  on  the  correctness  of  the  abstract,  purchased  the  land 
and  subsequently  sold  it,  giving  a  warranty  deed  thereto.  Her  gran- 
tee was  compelled,  in  order  to  retain  and  protect  his  title,  to  pay  off 
the  attachment  lien  above  mentioned,  whereupon  plaintiff  became 
liable  on  her  deed  to  her  grantee  for  the  amount  of  his  damages.  The 
petition  fails  to  disclose  that  plaintiff  has  paid  .the  damages  incurred 
by  her  grantee,  and  it  is  the  contention  of  counsel  for  defendants 
herein  that,  until  plaintiff  has  made  that  payment,  no  cause  of  action 
accrues,  contending  that  she  had  not  been  damaged  within  the  mean- 
ing the  statute.  Counsel  for  plaintiff  contends  that  the  damage  accru- 
ed at  the  time  the  abstract  was  delivered,  and  the  issue  thus  made 
is  the  one  presented  to  us  for  our  determination. 

Section  1,  c.  1,  Comp.  Laws  Okl.  1909,  provides  for  a  bond  t^  be 
given  by  persons  who  engage  in  the  making  of  abstracts  to  contain 
the  following  provision  that  they  (the  abstracter  and  his  bondsmen) 

1  For  discussion  of  principles,  see  Burdick,  Real  Prop.  §  304. 


DUTIES    AND   LIABILITIES    OF   ABSTRACTERS  6G1 

"will  pay  all  damages  that  may  accrue  to  any  person  by  reason  of  any 
incompleteness,  imperfections  or  error  in  any  abstract  furnished  by 
him."  The  word  "accrue,"  as  used  in  that  sentence,  means  to  be- 
come a  present  and  enforceable  demand.  McGuigan  v.  Rolfe,  80  111. 
App.  256,  259.  "A  cause  of  action  accrues  from  the  time  the  right  to 
sue  for  the  breach  attaches."  Amy  v.  Dubuque,  98  U.  S.  470,  476,  25 
L.  Ed.  228;  1  Words  and  Phrases,  p.  101.  And  the  rule  on  the  ques- 
tion presented  as  adduced  from  the  authorities  is  stated  by  1  Cyc.  p. 
217,  as  follows:  "The  right  of  action  against  an  abstracter  for  dam- 
ages resulting  from  an  incorrect  abstract  accrues  at  the  time  the  ex- 
amination is  made  and  reported,  and  not  when  the  error  is  discovered 
or  damages  result  therefrom."  See,  also,  cases  cited  under  note  39. 
The  following  cases  cited  to  sustain  the  text  and  others  are  noted  as 
follows:  Provident  Loan  Trust  Co.  v.  Wolcott  ct  al.,  5  Kan.  App. 
473,  47  Pac.  8;  Schade  v.  Gehner,  133  Mo.  252,  34  S.  W.  576;  Ran- 
kin V.  Schaefifer,  Adm'r,  et  al.,  4  Mo.  App.  108 ;  Security  Abstract  of 
Title  Co.  et  al.  v.  Longacre,  Adm'r,  56  Neb.  469,  76  N.  W.  1073; 
Brown  v.  Sims,  22  Ind.  App.  317,  53  N.  E.  '779,  72  Am.  St.  Rep.  308; 
Russell  V.  Polk  County  Abstract  Co.,  87  Iowa,  233,  54  N.  W.  212, 
43  Am.  St.  Rep.  381 ;  Lattin  v.  Gillette  et  al,  95  Cal.  317,  30  Pac. 
545,  29  Am.  St.  Rep.  115. 

In  the  case  of  Rankin  v.  Schaeffer,  Adm'r,  et  al.,  supra,  it  is  said : 
"The  examiner  of  titles  does  not  warrant.  He  is  not  liable,  except 
for  negligence  or  want  of  necessary  skill  and  knowledge.  The  con- 
tract made  by  him  when  he  receives  a  fee  and  examines  a  title  is  not 
one  of  indemnity,  but  a  contract  that  he  will  faithfully  and  skillfully 
do  his  work;  and  this  contract  is  broken,  and  an  action  lies  for  the 
breach  of  it,  so  soon  as  he,  through  negligence  or  ignorance  of  his 
business,  delivers  a  false  certificate  of  title.  Where  indemnity  alone 
is  expressed,  it  has  always  been  held  that  damage  must  be  sustained 
before  a  recovery  can  be  had ;  but,  where  there  is  a  positive  agree- 
ment to  do  the  act  which  is  to  prevent  damage  to  plaintiff,  there  the 
action  lies  if  defendant  neglects  or  refuses  to  do  the  act.  In  re  Negus, 
7  Wend.  [N.  Y.]  499;  Ham  v.  Hill,  29  Mo.  276;  Rowsey  v.  Lynch, 
61  Mo.  560."  Also,  in  such  a  case  where  the  petition  alleges  the 
breach  of  duty  and  also  special  and  consequential  damages,  the  breach 
of  the  duty,  and  not  the  consequential  damage,  is  the  cause  of  ac- 
tion.    Moore  v.  Juvenal,  92  Pa.  484. 

The  petition  alleges  the  insolvency  of  plaintiff's  grantor,  and  also 
with  some  detail  sets  up  her  liability  on  a  warranty  deed  which  she 
had  made  to  the  property,  and  under  the  authorities  above  noted  we 
think  there  can  be  no  doubt  about  the  liability  of  the  defendants  to 
her  for  the  damage  which  she  suffered  by  reason  of  any  negligence 
on  their  part  in  making  for  her  a  faulty  and  erroneous  abstract.  If 
an  abstracter  could  not  be  held  liable  under  conditions  presented  and 
insisted  on  in  this  case,  there  would  be  practically  no  protection  in 


662  ABSTRACTS   OF    TITLE 

an  abstract  to  those  who  secure  and  pay  for  the  same  for  the  purpose 
of  relying  thereon  in  the  purchase  of  real  estate. 

The  former  opinion  of  this  court  in  this  case,  reported  in  105  Pac. 
649,  is  reversed.  The  cause  is  accordingly  remanded  to  the  district 
court  of  Oklahoma  county,  with  instructions  to  set  aside  the  judgment 
heretofore  rendered  and  proceed  in  accordance  herewith. 

Turner,  Kane,  Hayes,  and  Williams,  JJ.,  concur. 


VBST  FUBLISHINe  OO.,  PBINTBBB,  8T.  tAVl^  HISV. 


g4i9  i  2 


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